Majority
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered August 17, 2015. The judgment convicted defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree.
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 criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39 [1]). We reject defendant’s contention that he did not knowingly waive his right to appeal. County Court “expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waive his right to appeal” (People v McCrea, 140 AD3d 1655 , 1655 [2016], lv denied 28 NY3d 933 [2016] [internal quotation marks omitted]) and, contrary to defendant’s contention, the record establishes that the court did not conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea (see id.). The court also specifically explained that the waiver included any challenge to the severity of the sentence, thereby foreclosing any such challenge on appeal (see People v Lopez, 6 NY3d 248 , 255-256 [2006]).
Defendant further contends that his plea was not knowingly, intelligently, and voluntarily entered. Although a challenge to the voluntariness of the plea survives a valid waiver of the right to appeal (see People v Shaw, 133 AD3d 1312 , 1313 [2015],
Present — Smith, J.P., DeJoseph, Curran, Troutman and Winslow, JJ.
Cases cited
- People v. Lopez 6 NY3d 248 at 255-256 p. 1583
- People v. Garcia-Cruz 138 AD3d 1414 at 1414-1415 p. 1584
- People v. Wisniewski 128 AD3d 1481 at 1481 p. 1584
- Branic International Realty Corp. v. Pitt 26 NY3d 937 p. 1584
- People v. Russell 133 AD3d 1199 at 1199 p. 1584
- People v. Alicea 148 AD3d 1662 at 1663 p. 1584
- People v. Dunham 83 AD3d 1423 at 1424 p. 1584