People v. Rios

Mar 23, 2012
Versions:93 A.D.3d 1349
940 N.Y.S.2d 512

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 burglary in the third degree (Penal Law § 140.20) and criminal possession of a weapon in the second degree (§ 265.03 [2]). We reject defendant‘s contention that he did not knowingly, voluntarily and intelligently waive his right to appeal. Taking into account “the nature and terms of the [plea] agreement and the age, experience and background of [defendant]” (People v Seaberg, 74 NY2d 1, 11 [1989]), we conclude that the record of the plea colloquy “establish[es] that the 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]; cf. People v Moyett, 7 NY3d 892, 893 [2006]). Defendant‘s further contention that his plea was not knowingly and voluntarily entered is actually a challenge to the factual sufficiency of the plea allocution. That challenge “is encompassed by the valid waiver of the right to appeal and is unpreserved for our review inasmuch as [defendant] did not move to withdraw the plea or to vacate the judgment of conviction on that ground” (People v Bryant, 87 AD3d 1270, 1271 [2011], lv denied 18 NY3d 881 [2012]). In addition, “the waiver by defendant of the right to appeal encompasses his contention that the sentence is unduly harsh and severe” (People v Ruffins, 78 AD3d 1627, 1628 [2010]). Present—Smith, J.P., Carni, Lindley and Sconiers, JJ.