People v. Burtes

Appellate Division of the Supreme Court of New York

People v. Burtes

2017 NY Slip Op 4969, 151 A.D.3d 1774, 57 N.Y.S.3d 814

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 9, 2017

Docket655 KA 15-00325

StatusPublished

This text of 2017 NY Slip Op 4969 (People v. Burtes) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Burtes, 2017 NY Slip Op 4969, 151 A.D.3d 1774, 57 N.Y.S.3d 814 (N.Y. Ct. App. 2017).

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Opinion

Appeal from a *1775 judgment of the Niagara County Court (Matthew J. Murphy, III, J.), rendered May 3, 2016. The judgment convicted defendant, upon his plea of guilty, of attempted rape in the second degree and attempted sexual abuse in the first 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 rape in the second degree (Penal Law §§ 110.00, 130.30 [1]) and attempted sexual abuse in the first degree (§§ 110.00, 130.65 [1]), defendant contends that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence and that the sentence is unduly harsh and severe. We reject those contentions. The plea colloquy and the written waiver of the right to appeal, which was signed and acknowledged by defendant at the time of the plea, establish that defendant knowingly, voluntarily and intelligently waived the right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]). Defendant’s valid waiver of the right to appeal specifically included a waiver of the right to challenge the severity of the sentence, and thus encompasses defendant’s contention that the sentence imposed is unduly harsh and severe (see id. at 255-256; People v Hidalgo, 91 NY2d 733, 737 [1998]; cf. People v Maracle, 19 NY3d 925, 928 [2012]).

Present — Smith, J.P., Centra, Peradotto, Lindley and NeMoyer, JJ.

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Appeal from a *1775 judgment of the Niagara County Court (Matthew J. Murphy, III, J.), rendered May 3, 2016. The judgment convicted defendant, upon his plea of guilty, of attempted rape in the second degree and attempted sexual abuse in the first 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 rape in the second degree (Penal Law §§ 110.00, 130.30 [1]) and attempted sexual abuse in the first degree (§§ 110.00, 130.65 [1]), defendant contends that his waiver of the right to appeal does not encompass his challenge to the severity of the sentence and that the sentence is unduly harsh and severe. We reject those contentions. The plea colloquy and the written waiver of the right to appeal, which was signed and acknowledged by defendant at the time of the plea, establish that defendant knowingly, voluntarily and intelligently waived the right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]). Defendant’s valid waiver of the right to appeal specifically included a waiver of the right to challenge the severity of the sentence, and thus encompasses defendant’s contention that the sentence imposed is unduly harsh and severe (see id. at 255-256; People v Hidalgo, 91 NY2d 733, 737 [1998]; cf. People v Maracle, 19 NY3d 925, 928 [2012]).

Present — Smith, J.P., Centra, Peradotto, Lindley and NeMoyer, JJ.

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Bluebook (online)

2017 NY Slip Op 4969, 151 A.D.3d 1774, 57 N.Y.S.3d 814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-burtes-nyappdiv-2017.

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