THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. LUIS COLON DEFENDANT APPELLANT (2017)

Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. LUIS COLON, DEFENDANT–APPELLANT.

KA 15–02154

Decided: December 22, 2017

PRESENT: WHALEN, P.J., SMITH, CARNI, TROUTMAN, AND WINSLOW, JJ.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL S. DEAL OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE 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 plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03[3] ) and attempted assault in the first degree (§§ 110.00, 120.10[1] ). County Court “expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waive his right to appeal, and the court did not conflate that right with those automatically forfeited by a guilty plea” (People v. McCrea, 140 AD3d 1655, 1655 [4th Dept 2016], lv denied 28 NY3d 933 [2016] [internal quotation marks omitted]; see People v. Toney, 153 AD3d 1583, 1583 [4th Dept 2017] ). The court also specifically explained that the waiver included defendant's right to appeal his “conviction and sentence,” thereby foreclosing defendant's challenge to the severity of his sentence (see Toney, 153 AD3d at 1583; cf. People v. Maracle, 19 NY3d 925, 928 [2012] ).

Mark W. Bennett

Clerk of the Court

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