PEOPLE v. LABADEE (2019)

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 sale of a controlled substance in the third degree (Penal Law § 220.39[1]).  We reject defendant's contention that he did not knowingly, voluntarily, and intelligently waive his right to appeal (see People v. Garrett, 167 A.D.3d 1586, 1586, 88 N.Y.S.3d 385 [4th Dept. 2018];  see generally People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ).  Contrary to defendant's contentions, the record establishes that County Court “ ‘did not improperly conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea’ ” (People v. Bray, 170 A.D.3d 1538, 1538, 94 N.Y.S.3d 532 [4th Dept. 2019], lv denied 33 N.Y.3d 1066, 105 N.Y.S.3d 53, 129 N.E.3d 373 [2019];  see People v. Alfano, 172 A.D.3d 1920, 1921, 97 N.Y.S.3d 919 [4th Dept. 2019], lv denied 33 N.Y.3d 1101, 106 N.Y.S.3d 658, 130 N.E.3d 1268 [2019]), and “the court ‘was not required to specify during the colloquy which specific claims survive the waiver of the right to appeal’ ” (People v. Livermore, 161 A.D.3d 1569, 1569, 76 N.Y.S.3d 732 [4th Dept. 2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018]).  The valid waiver of the right to appeal encompasses defendant's challenge to the severity of the sentence (see People v. McArthur, 149 A.D.3d 1568, 1568–1569, 52 N.Y.S.3d 600 [4th Dept. 2017];  see generally People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416 [1998];  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998]).

Defendant contends that his plea was not knowing, intelligent, and voluntary because he simply responded “yes” and “no” to many of the court's questions.  That contention is actually a challenge to the factual sufficiency of the plea allocution, which is encompassed by the valid waiver of the right to appeal (see People v. Pryce, 148 A.D.3d 1625, 1625–1626, 51 N.Y.S.3d 737 [4th Dept. 2017], lv denied 29 N.Y.3d 1085, 64 N.Y.S.3d 175, 86 N.E.3d 262 [2017];  People v. Simcoe, 74 A.D.3d 1858, 1859, 902 N.Y.S.2d 489 [4th Dept. 2010], lv denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010]).  In any event, defendant did not preserve that contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction (see Livermore, 161 A.D.3d at 1570, 76 N.Y.S.3d 732), and this case does not fall within the narrow exception to the preservation rule (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988]).