PEOPLE v. WINCHESTER (2007)

 Defendant appeals from a judgment convicting him, upon his plea of guilty, of manslaughter in the first degree (Penal Law § 125.20[1] ).   We reject the contention of defendant that he did not validly waive his right to appeal.   Although no “ ‘particular litany during an allocution [is required] in order to obtain a valid guilty plea in which defendant waives a plethora of rights,’ including the right to appeal” (People v. Gilbert, 17 A.D.3d 1164, 1164, 793 N.Y.S.2d 847, lv. denied 5 N.Y.3d 762, 801 N.Y.S.2d 257, 834 N.E.2d 1267, quoting People v. Moissett, 76 N.Y.2d 909, 910-911, 563 N.Y.S.2d 43, 564 N.E.2d 653), “trial courts [must] ensure that defendants understand what they are surrendering when they waive the right to appeal” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).   Here, County Court explained to defendant the significance of the waiver of the right to appeal, and “[d]efendant's responses to [the c]ourt's questions unequivocally established that defendant understood the proceedings and was voluntarily waiving the right to appeal” (Gilbert, 17 A.D.3d at 1164, 793 N.Y.S.2d 847).   The valid waiver by defendant of the right to appeal encompasses his challenge to the factual sufficiency of the plea allocution with respect to his intent to commit manslaughter and a possible justification defense (see People v. Halston, 37 A.D.3d 1144, 829 N.Y.S.2d 380).   In addition, by failing to move to withdraw his plea or to vacate the judgment of conviction, defendant failed to preserve that challenge for our review (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;  People v. Davis, 37 A.D.3d 1179, 829 N.Y.S.2d 791;  People v. Farnsworth, 32 A.D.3d 1176, 820 N.Y.S.2d 832, lv. denied 7 N.Y.3d 867, 824 N.Y.S.2d 612, 857 N.E.2d 1143).   In any event, the court conducted a sufficient inquiry to ensure that there was no justification defense and that the plea was knowingly, voluntarily and intelligently entered (see Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;  Davis, 37 A.D.3d 1179, 829 N.Y.S.2d 791).

 By pleading guilty, defendant forfeited his contention that he was denied the right to testify before the grand jury (see People v. Sachs, 280 A.D.2d 966, 966-967, 721 N.Y.S.2d 214, lv. denied 96 N.Y.2d 834, 729 N.Y.S.2d 455, 754 N.E.2d 215, 97 N.Y.2d 708, 739 N.Y.S.2d 109, 765 N.E.2d 312;  see generally People v. Hansen, 95 N.Y.2d 227, 230-232, 715 N.Y.S.2d 369, 738 N.E.2d 773).   Additionally, that contention is encompassed by the valid waiver of the right to appeal (see People v. Simms, 269 A.D.2d 788, 703 N.Y.S.2d 777, lv. denied 94 N.Y.2d 952, 710 N.Y.S.2d 9, 731 N.E.2d 626), as is the contention of defendant that the court erred in refusing to suppress his statements to the police (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;  People v. Rivera, 30 A.D.3d 1019, 815 N.Y.S.2d 860, lv. denied 7 N.Y.3d 870, 824 N.Y.S.2d 614, 857 N.E.2d 1145).   Finally, the valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence (see Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  Rivera, 30 A.D.3d at 1019, 815 N.Y.S.2d 860) and, in any event, we note that defendant received the bargained-for sentence.

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

MEMORANDUM: