People v. Korber

89 A.D.3d 1543, 932 N.Y.2d 780

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 2011
• Status: Published

Opinion

Memorandum:

Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the first degree (Penal Law § 160.15 [3]) and rape in the first degree (§ 130.35 [1]). Contrary to defendant’s contention, he knowingly, intelligently and voluntarily waived his right to appeal as a condition of the plea (see generally People v Lopez, 6 NY3d 248, 256 [2006]). “County 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 James, 71 AD3d 1465, 1465 [2010] [internal quotation marks omitted]), and the record establishes that he “understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (Lopez, 6 NY3d at 256).

Defendant’s further contention “that his plea was not knowing, intelligent and voluntary ‘because he did not recite the underlying facts of the crime [s] but simply replied to [the c]ourt’s questions with monosyllabic responses is actually a challenge to the factual sufficiency of the plea allocution,’ which is encompassed by the valid waiver of the right to appeal” (People v Simcoe, 74 AD3d 1858, 1859 [2010], lv denied 15 NY3d 778 [2010]; see People v Brown, 66 AD3d 1385 [2009], lv denied 14 NY3d 839 [2010]). Moreover, defendant failed to preserve that contention for our review inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction (see People v Jamison, 71 AD3d 1435 [2010], lv denied 14 NY3d 888 [2010]; People v Lacey, 49 AD3d 1259, 1259-1260 [2008], lv denied 10 NY3d 936 [2008]).

Defendant’s constitutional challenge to the persistent felony offender statute is unpreserved for our review (see People v Besser, 96 NY2d 136, 148 [2001]; People v Watkins, 17 AD3d 1083, 1084 [2005], lv denied 5 NY3d 771 [2005]), and “ ‘there is no indication in the record that the Attorney General was given the requisite notice of that challenge’ ” (People v Bastian, 83 AD3d 1468, 1469-1470 [2011], lv denied 17 NY3d 813 [2011]). In any event, defendant’s challenge is without merit (see People v Battles, 16 NY3d 54, 59 [2010], cert denied 565 US —, 132 S Ct 123 [2011]; People v Rawlins, 10 NY3d 136, 158 [2008], cert denied sub nom. Meekins v New York, 557 US —, 129 S Ct 2856 [2009]; Bastian, 83 AD3d at 1470). Defendant’s contention that the court erred in failing to conduct a hearing before sentencing him as a persistent felony offender is encompassed by his valid waiver of the right to appeal (see People v Taylor, 73 AD3d 1285, 1286 [2010], lv denied 15 NY3d 810 [2010]). Moreover, defendant failed to preserve that contention for our review (see generally People v Proctor, 79 NY2d 992, 994 [1992]).

Finally, defendant’s challenge to the severity of the sentence is encompassed by the valid waiver of the right to appeal (see People v Hidalgo, 91 NY2d 733, 737 [1998]). Present — Scudder, EJ., Garni, Lindley, Sconiers and Green, JJ.