PEOPLE v. BRANCH (2008)

Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Todd A. BRANCH, Defendant-Appellant. (Appeal No. 1.)

Decided: March 14, 2008

PRESENT: SCUDDER, P.J., MARTOCHE, CENTRA, FAHEY, AND PERADOTTO, JJ.

Frank H. HiscockLegal Aid Society, Syracuse (Shirley K. Duffy of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of reckless endangerment in the first degree (Penal Law § 120.25) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the third degree (§ 265.02 [former (4) ] ). Contrary to the contention of defendant, the single plea colloquy for both pleas establishes that his waiver of the right to appeal was voluntary, knowing, and intelligent (see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416; People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108; People v. Williams, 39 A.D.3d 1200, 835 N.Y.S.2d 793, lv. denied 9 N.Y.3d 853, 840 N.Y.S.2d 779, 872 N.E.2d 892). The further contention of defendant that the pleas were not knowingly, voluntarily, and intelligently entered because he did not recite the underlying facts of the crimes “is actually a challenge to the factual sufficiency of the plea allocution [s] ․, [which] is encompassed by the valid waiver of the right to appeal” (People v. Wilson, 38 A.D.3d 1348, 832 N.Y.S.2d 333, lv. denied 9 N.Y.3d 927, 844 N.Y.S.2d 182, 875 N.E.2d 901; People v. Williams, 35 A.D.3d 1273, 1274, 825 N.Y.S.2d 862, lv. denied 8 N.Y.3d 928, 834 N.Y.S.2d 519, 866 N.E.2d 465). Defendant also failed to preserve that contention for our review, and this case does not fall within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5; Wilson, 38 A.D.3d 1348, 832 N.Y.S.2d 333; Williams, 35 A.D.3d at 1274, 825 N.Y.S.2d 862). Finally, the challenge by defendant to the severity of the sentence in each appeal is encompassed by his valid waiver of the right to appeal (see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM:

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