People v. Rodriguez

Appeal from a judgment of the Ontario County Court (William F. Kocher, J.), rendered March 26, 2014. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree (three counts) and attempted assault in the first 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 three counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]) and one count of attempted assault in the first degree (§§ 110.00, 120.10 [1]). Contrary to defendant’s contention, he knowingly, intelligently, and voluntarily waived the right to appeal (see People v Lopez, 6 NY3d 248 , 256 [2006]). County Court “expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waive his right to appeal, and the court did not conflate that right with those automatically forfeited by a guilty plea” (People v McCrea, 140 AD3d 1655 ,

To the extent that defendant challenges the voluntariness of his plea, that contention, although not precluded by the valid waiver of the right to appeal (see People v Neal, 148 AD3d 1699 , 1699-1700 [4th Dept 2017], lv denied 29 NY3d 1084 [2017]), is similarly unpreserved for our review “inasmuch as defendant did not move to withdraw the plea or vacate the judgment of conviction (see CPL 220.60 [3]; see also CPL 440.10), 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]).

Defendant further contends that the waiver of the right to appeal does not encompass his challenge to the severity of his sentence (see generally People v Maracle, 19 NY3d 925 , 927-928 [2012]). Although the court, during its oral colloquy, referenced defendant’s “right ... to appeal th[e] conviction” without referencing his right to challenge the severity of the sentence, we note that defendant executed and acknowledged in open court a written waiver of the right to appeal, in which he specifically agreed to waive “any issue relating to the conviction or sentence.” Thus, we reject defendant’s contention (see People v Morales, 148 AD3d 1638 , 1639 [4th Dept 2017], lv denied 29 NY3d 1083 [2017]; cf. People v Cook, 147 AD3d 1387 , 1387-1388 [4th Dept 2017], lv denied 29 NY3d 996 [2017]).

Present—Smith, J.P., Carni, Lindley, Curran and Troutman, JJ.