People v. Thorpe

269 A.D.2d 843, 703 N.Y.S.2d 767, 2000 N.Y. App. Div. LEXIS 1783

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 2000
• Status: Published

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty of assault in the second degree (Penal Law § 120.05 [1]). We reject the People’s contention that, by not moving to withdraw his plea or vacate the judgment of conviction, defendant failed to preserve for our review his contention concerning the validity of the waiver of the right to appeal (cf., People v Doty, 267 AD2d 616; People v Rumberger, 262 AD2d 801; People v Dopp, 261 AD2d 715; People v Tuper, 256 AD2d 636, lv denied 92 NY2d 1039). Preservation was not required. “The role of the appellate courts is to review the record to ensure that the defendant’s waiver reflects a knowing, intelligent and voluntary choice” (People v Hidalgo, 91 NY2d 733, 736). The record establishes that defendant’s waiver was knowing, intelligent and voluntary (see, People v Callahan, 80 NY2d 273, 280). That waiver encompasses defendant’s contention that the sentence is unduly harsh or severe (see, People v Hidalgo, supra, at 737). (Appeal from Judgment of Monroe County Court, Marks, J. — Assault, 2nd Degree.) Present — Wisner, J. P., Hurlbutt, Scudder and Lawton, JJ.