THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. KEVIN ABERNATHY DEFENDANT APPELLANT (2016)

Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. KEVIN L. ABERNATHY, DEFENDANT–APPELLANT.

KA 14–00058

Decided: February 05, 2016

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C. RUSSO–MCLAUGHLIN OF COUNSEL), FOR DEFENDANT–APPELLANT. FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ). Contrary to the contention of defendant, the record establishes that his waiver of the right to appeal was knowingly, intelligently and voluntarily entered (see People v. Lopez, 6 NY3d 248, 256). County Court thoroughly reviewed the consequences of the waiver with defendant, after which defendant indicated that he understood those consequences and orally waived his right to appeal (see People v. Peterson, 35 AD3d 1195, 1196, lv denied 8 NY3d 926). Defendant's challenge to the factual sufficiency of the plea allocution is encompassed by his valid waiver of the right to appeal (see People v. Rosado, 70 AD3d 1315, 1316, lv denied 14 NY3d 892).

Frances E. Cafarell

Clerk of the Court

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