PEOPLE v. OWENS (2018)

MEMORANDUM AND ORDER

Defendant appeals from a judgment convicting him, upon his plea of guilty, of assault in the second degree (Penal Law § 120.05 [2] ).  Contrary to defendant's contention, his waiver of the right to appeal is valid (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).  County Court “engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v. Hicks, 89 A.D.3d 1480, 1480, 932 N.Y.S.2d 412 [4th Dept. 2011], lv denied 18 N.Y.3d 924, 942 N.Y.S.2d 463, 965 N.E.2d 965 [2012] [internal quotation marks omitted] ), and the record establishes that he “understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).  Defendant's valid waiver of the right to appeal forecloses his challenge to the court's suppression rulings (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ), and we note in any event that defendant withdrew his suppression motion before he pleaded guilty.  Even assuming, arguendo, that defendant's contention with respect to the sentence imposed survives his valid waiver of the right to appeal, we conclude that it lacks merit.

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

Memorandum: