PEOPLE v. GARCIA (2017)

Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1] ). Contrary to defendant's contention and the “concession” of the People, the record establishes that defendant validly waived his right to appeal (see generally People v. Lopez, 6 NY3d 248, 256 [2006] ). Upon our review of the colloquy, we conclude that Supreme Court “did not indicate to defendant that he automatically forfeited his right to appeal upon pleading guilty” (People v. Tabb, 81 AD3d 1322, 1322 [4th Dept 2011], lv denied 16 NY3d 900 [2011]; cf. People v. Moyett, 7 NY3d 892, 892–893 [2006] ). “Rather, the court ‘engaged in a fuller colloquy, describing the nature of the right being waived without lumping that right into the panoply of trial rights automatically forfeited upon pleading guilty’ “ (Tabb, 81 AD3d at 1322, quoting Lopez, 6 NY3d at 257). Defendant's valid waiver of the right to appeal, which specifically included a waiver of the right to challenge the severity of the sentence, encompasses his contention that the sentence imposed is unduly harsh and severe (see Lopez, 6 NY3d at 255–256; People v. Hidalgo, 91 N.Y.2d 733, 737 [1998]; cf. People v. Maracle, 19 NY3d 925, 928 [2012] ).

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

MEMORANDUM: