PEOPLE v. SMITH (2018)

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 murder in the second degree (Penal Law § 125.25 [1] ).  Contrary to defendant's contention, we conclude that his waiver of the right to appeal during the plea colloquy was valid (see generally People v. Sanders, 25 N.Y.3d 337, 340–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ).  The fact that the appeal waiver was not reduced to writing is of no moment where, as here, the oral waiver was adequate (see People v. Handly, 122 A.D.3d 1007, 1008, 995 N.Y.S.2d 415 [3d Dept. 2014];  see also People v. Renert, 143 A.D.3d 1016, 1016–1017, 38 N.Y.S.3d 640 [3d Dept. 2016], lv denied 28 N.Y.3d 1126, 51 N.Y.S.3d 23, 73 N.E.3d 363 [2016] ).  Further, while it may have been the better practice for County Court to ask defendant whether he discussed the appeal waiver with defense counsel (see People v. Lester, 141 A.D.3d 951, 953, 36 N.Y.S.3d 288 [3d Dept. 2016], lv denied 28 N.Y.3d 1185, 52 N.Y.S.3d 712, 75 N.E.3d 104 [2017];  People v. Belile, 137 A.D.3d 1460, 1461, 27 N.Y.S.3d 738 [3d Dept. 2016] ), the court was not required to engage in any particular litany and, based on “all of the relevant factors surrounding the waiver,” we conclude that the record established defendant's knowing, voluntary and intelligent waiver of the right to appeal (Sanders, 25 N.Y.3d at 341, 12 N.Y.S.3d 593, 34 N.E.3d 344).

The valid waiver of the right to appeal encompasses defendant's challenge to the factual sufficiency of the plea allocution (see People v. Oswold, 151 A.D.3d 1756, 1756, 55 N.Y.S.3d 568 [4th Dept. 2017], lv denied 29 N.Y.3d 1131, 64 N.Y.S.3d 681, 86 N.E.3d 573 [2017];  People v. McCrea, 140 A.D.3d 1655, 1655, 32 N.Y.S.3d 778 [4th Dept. 2016], lv denied 28 N.Y.3d 933, 40 N.Y.S.3d 361, 63 N.E.3d 81 [2016] ), and his contention that the sentence is unduly harsh and severe (see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416 [1998] ).  Finally, by pleading guilty, defendant forfeited his challenge to the court's Sandoval ruling (see People v. Ingram, 128 A.D.3d 1404, 1404, 8 N.Y.S.3d 528 [4th Dept. 2015], lv denied 25 N.Y.3d 1202, 16 N.Y.S.3d 525, 37 N.E.3d 1168 [2015] ).