THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO (2016)

MEMORANDUM AND ORDER

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

Memorandum:  In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of rape in the first degree (Penal Law § 130.35 [1] ) and, in appeal No. 2, defendant appeals from a judgment convicting him upon his plea of guilty of two counts of rape in the first degree (§ 130.35 [1] ).  Defendant pleaded guilty to the crimes in one plea proceeding.  We reject defendant's contention in both appeals that his waiver of the right to appeal was invalid.  County Court “ ‘made clear that the waiver of the right to appeal was a condition of [the] plea, not a consequence thereof, and the record reflects that defendant understood that the waiver of the right to appeal was separate and distinct from those rights automatically forfeited upon a plea of guilty’ “ (People v. Graham, 77 AD3d 1439, 1439, lv denied 15 NY3d 920, quoting People v. Lopez, 6 NY3d 248, 256).  The valid waiver of the right to appeal encompasses defendant's further contention in both appeals that the sentence is unduly harsh and severe (see generally Lopez, 6 NY3d at 255–256).

Frances E. Cafarell

Clerk of the Court