People v. Hand

Feb 3, 2017
Versions:147 A.D.3d 1326
45 N.Y.S.3d 832
2017 NY Slip Op 00776

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted rape in the first degree (Penal Law §§ 110.00, 130.35 [1]). Contrary to defendant‘s contention, we conclude that the record establishes that County Court “conducted an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v Davis, 129 AD3d 1613, 1613 [2015], lv denied 26 NY3d 966 [2015] [internal quotation marks omitted]), and that “defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v Lopez, 6 NY3d 248, 256 [2006]). Contrary to defendant‘s further contentions, his “monosyllabic affirmative responses to questioning by [the c]ourt do not render his [waiver] unknowing and involuntary” (People v Harris, 94 AD3d 1484, 1485 [2012], lv denied 19 NY3d 961 [2012]), and the court “was not required to specify during the colloquy which specific claims survive the waiver of the right to appeal” (People v Rodriguez, 93 AD3d 1334, 1335 [2012], lv denied 19 NY3d 966 [2012]; see People v Kosty, 122 AD3d 1408, 1408 [2014], lv denied 24 NY3d 1220 [2015]). Defendant‘s contention that “his plea was not knowing, intelligent and voluntary ‘because he did not recite the underlying facts of the crime but simply replied to [the c]ourt‘s questions with monosyllabic responses is actually a challenge to the factual sufficiency of the plea allocution,’ which is encompassed by the valid waiver of the right to appeal” (People v Simcoe, 74 AD3d 1858, 1859 [2010], lv denied 15 NY3d 778 [2010]). Finally, defendant‘s valid waiver of the right to appeal encompasses his challenge to the severity of the sentence (see Davis, 129 AD3d at 1615; see generally Lopez, 6 NY3d at 255-256). Present—Whalen, P.J., Smith, Peradotto, DeJoseph and Curran, JJ.