People v. Talley

Dec 27, 2013
Versions:112 A.D.3d 1347
977 N.Y.S.2d 526

Appeal from a judgment of the Supreme Court, Erie County (Gerald J. Whalen, J.), rendered July 11, 2011. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the fourth degree.

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

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted criminal possession of a controlled substance in the fourth degree (Penal Law §§ 110.00, 220.09 [1]), defendant contends that his waiver of the right to appeal is unenforceable and that his sentence is unduly harsh and severe. The record demonstrates, however, that Supreme Court “engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v Burt, 101 AD3d 1729, 1730 [2012], lv denied 20 NY3d 1060 [2013] [internal quotation marks omitted]), and that defendant also signed a written waiver of the right to appeal (see People v Pulley, 107 AD3d 1560, 1561 [2013], lv denied 21 NY3d 1076 [2013]). We thus conclude that the waiver is enforceable and that defendant is thereby foreclosed from challenging the severity of his sentence (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Suttles, 107 AD3d 1467, 1468 [2013], lv denied 21 NY3d 1046 [2013]). Present—Scudder, P.J., Smith, Peradotto, Lindley and Sconiers, JJ.