People v. Slishevsky

Appellate Division of the Supreme Court of New York

People v. Slishevsky

149 A.D.3d 1488, 52 N.Y.S.3d 770

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

DecidedApril 28, 2017

StatusPublished

This text of 149 A.D.3d 1488 (People v. Slishevsky) 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. Slishevsky, 149 A.D.3d 1488, 52 N.Y.S.3d 770 (N.Y. Ct. App. 2017).

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Opinion

Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered January 21, 2014. The judgment convicted defendant, upon his plea of guilty, of course of sexual conduct against a child 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 course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [b]), defendant contends that his waiver of the right to appeal is not valid. We reject that contention and conclude that County Court engaged defendant “in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v Marshall, 144 AD3d 1544, 1545 [2016] [internal quotation marks omitted]; see People v Korber, 89 AD3d 1543, 1543 [2011], lv denied 19 NY3d 864 [2012]). “[A] trial court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned” (People v Lopez, 6 NY3d 248, 256 [2006]), and “[t]he plea al-locution as a whole establishes that defendant’s waiver of the right to appeal was knowing, intelligent, and voluntary” (People v Brown, 281 AD2d 962, 962 [2001], lv denied 96 NY2d 899 [1489]*1489[2001]). Here, we conclude that the court “made clear that the waiver of the right to appeal was a condition of [the] plea, not a consequence thereof, and the record reflects that defendant understood that the waiver of the right to appeal was ‘separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” (People v Graham, 77 AD3d 1439, 1439 [2010], lv denied 15 NY3d 920 [2010], quoting Lopez, 6 NY3d at 256). The valid waiver of the right to appeal forecloses our review of defendant’s contention that the sentence is unduly harsh and severe (see generally Lopez, 6 NY3d at 255-256; People v Hidalgo, 91 NY2d 733, 737 [1998]), as well as his constitutional challenges, which in any event we have already determined to be without merit (see People v Slishevsky, 97 AD3d 1148, 1151 [2012], lv denied 20 NY3d 1015 [2013]).

Present — Carni, J.P., Lindley, DeJoseph, Troutman and Scudder, JJ.

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Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), rendered January 21, 2014. The judgment convicted defendant, upon his plea of guilty, of course of sexual conduct against a child 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 course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [b]), defendant contends that his waiver of the right to appeal is not valid. We reject that contention and conclude that County Court engaged defendant “in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v Marshall, 144 AD3d 1544, 1545 [2016] [internal quotation marks omitted]; see People v Korber, 89 AD3d 1543, 1543 [2011], lv denied 19 NY3d 864 [2012]). “[A] trial court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned” (People v Lopez, 6 NY3d 248, 256 [2006]), and “[t]he plea al-locution as a whole establishes that defendant’s waiver of the right to appeal was knowing, intelligent, and voluntary” (People v Brown, 281 AD2d 962, 962 [2001], lv denied 96 NY2d 899 [1489]*1489[2001]). Here, we conclude that the court “made clear that the waiver of the right to appeal was a condition of [the] plea, not a consequence thereof, and the record reflects that defendant understood that the waiver of the right to appeal was ‘separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” (People v Graham, 77 AD3d 1439, 1439 [2010], lv denied 15 NY3d 920 [2010], quoting Lopez, 6 NY3d at 256). The valid waiver of the right to appeal forecloses our review of defendant’s contention that the sentence is unduly harsh and severe (see generally Lopez, 6 NY3d at 255-256; People v Hidalgo, 91 NY2d 733, 737 [1998]), as well as his constitutional challenges, which in any event we have already determined to be without merit (see People v Slishevsky, 97 AD3d 1148, 1151 [2012], lv denied 20 NY3d 1015 [2013]).

Present — Carni, J.P., Lindley, DeJoseph, Troutman and Scudder, JJ.

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149 A.D.3d 1488, 52 N.Y.S.3d 770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-slishevsky-nyappdiv-2017.

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