People v. Wilson

Jan 31, 2020
1264 KA 16-00368
Versions:179 A.D.3d 1527
118 N.Y.S.3d 859
2020 NY Slip Op 775
2020 NY Slip Op 00775

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 burglary in the second degree (Penal Law § 140.25 [2]), defendant contends that his waiver of the right to appeal is invalid. We reject that contention. Defendant waived that right “both orally and in writing before pleading guilty, and [County Court] conducted an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v McGrew, 118 AD3d 1490, 1490-1491 [4th Dept 2014], lv denied 23 NY3d 1065 [2014] [internal quotation marks omitted]; see People v Weatherbee, 147 AD3d 1526, 1526 [4th Dept 2017], lv denied 29 NY3d 1038 [2017]; People v Nicometo, 137 AD3d 1619, 1619-1620 [4th Dept 2016]). Additionally, the court “did not improperly conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea” (People v Tilford, 162 AD3d 1569, 1569 [4th Dept 2018], lv denied 32 NY3d 942 [2018] [internal quotation marks omitted]; see People v Tabb, 81 AD3d 1322, 1322 [4th Dept 2011], lv denied 16 NY3d 900 [2011]).

Although defendant‘s contention that his guilty plea was not voluntarily, knowingly and intelligently entered survives the waiver of the right to appeal (see People v McKay, 5 AD3d 1040, 1041 [4th Dept 2004], lv denied 2 NY3d 803 [2004]), that contention is unpreserved for our review because defendant failed to move to withdraw his guilty plea or to vacate the judgment of conviction (see People v Rojas, 147 AD3d 1535, 1536 [4th Dept 2017], lv denied 29 NY3d 1036 [2017]; People v Brown, 115 AD3d 1204, 1205 [4th Dept 2014], lv denied 23 NY3d 1060 [2014]), and “nothing on the face of the record calls into question the voluntariness of the plea or casts significant doubt upon defendant‘s guilt” (People v Karlsen, 147 AD3d 1466, 1468 [4th Dept 2017], lv denied 29 NY3d 1082 [2017]; see People v Rodriguez, 156 AD3d 1433, 1434 [4th Dept 2017], lv denied 30 NY3d 1119 [2018]). In any event, defendant‘s contention lacks merit inasmuch as it is based solely on an unsupported claim of innocence (see People v Haffiz, 19 NY3d 883, 884-885 [2012]; see generally People v Dixon, 29 NY2d 55, 57 [1971]), which is belied by his statements during the plea colloquy (see People v Dale, 142 AD3d 1287, 1289 [4th Dept 2016], lv denied 28 NY3d 1144 [2017]; see generally Dixon, 29 NY2d at 57).

Entered: January 31, 2020

Mark W. Bennett

Clerk of the Court