PEOPLE v. GAINES (2018)

MEMORANDUM AND ORDER

Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree (Penal Law §§ 110.00, 220.16[1] ).  Contrary to defendant's contention, we conclude that he knowingly, intelligently, and voluntarily waived his right to appeal as a condition of the plea (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), and the record establishes that defendant “understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (id.).  Contrary to defendant's related contention, the oral waiver of the right to appeal was “buttressed by [his] written waiver of appeal, which explicitly enumerated the rights that were to be relinquished and [in which defendant] acknowledged that [he] had discussed the consequences of the waiver with counsel” (People v. Giovanni, 53 A.D.3d 778, 778, 861 N.Y.S.2d 214 [3d Dept. 2008], lv denied 11 N.Y.3d 832, 868 N.Y.S.2d 606, 897 N.E.2d 1090 [2008] ).  Finally, we conclude that defendant's valid waiver of the right to appeal encompasses his challenge to the severity of the sentence (see Lopez, 6 N.Y.3d at 255, 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: