PEOPLE v. JONES (2012)

Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the second degree (Penal Law § 160.10[1] ).   We reject defendant's contention that he did not knowingly, voluntarily and intelligently waive his right to appeal.   Contrary to defendant's contention, 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. Wright, 66 A.D.3d 1334, 885 N.Y.S.2d 794, lv. denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915 [internal quotation marks omitted] ).   Further, the record as a whole, including the written waiver of the right to appeal, establishes “that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  see People v. Kulyeshie, 71 A.D.3d 1478, 1478–1479, 895 N.Y.S.2d 909, lv. denied 14 N.Y.3d 889, 903 N.Y.S.2d 777, 929 N.E.2d 1012).

Defendant's valid waiver of the right to appeal encompasses his contention that the court abused its discretion in denying his request for youthful offender status (see People v. Elshabazz, 81 A.D.3d 1429, 1429, 916 N.Y.S.2d 883, lv. denied 16 N.Y.3d 858, 923 N.Y.S.2d 420, 947 N.E.2d 1199;  People v. Kearns, 50 A.D.3d 1514, 1515, 856 N.Y.S.2d 772, lv. denied 11 N.Y.3d 790, 866 N.Y.S.2d 616, 896 N.E.2d 102), as well as his challenge to the severity of the sentence (see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

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

MEMORANDUM: