PEOPLE v. WILSON (2020)

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25[2]), defendant contends that his waiver of the right to appeal is invalid.  We reject that contention.  Defendant waived that right “both orally and in writing before pleading guilty, and [County Court] conducted an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v. McGrew, 118 A.D.3d 1490, 1490–1491, 987 N.Y.S.2d 539 [4th Dept. 2014], lv denied 23 N.Y.3d 1065, 994 N.Y.S.2d 324, 18 N.E.3d 1145 [2014] [internal quotation marks omitted];  see People v. Weatherbee, 147 A.D.3d 1526, 1526, 46 N.Y.S.3d 811 [4th Dept. 2017], lv denied 29 N.Y.3d 1038, 62 N.Y.S.3d 307, 84 N.E.3d 979 [2017];  People v. Nicometo, 137 A.D.3d 1619, 1619–1620, 26 N.Y.S.3d 916 [4th Dept. 2016]).  Additionally, the court “did not improperly conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea” (People v. Tilford, 162 A.D.3d 1569, 1569, 74 N.Y.S.3d 918 [4th Dept. 2018], lv denied 32 N.Y.3d 942, 84 N.Y.S.3d 868, 109 N.E.3d 1168 [2018] [internal quotation marks omitted];  see People v. Tabb, 81 A.D.3d 1322, 1322, 916 N.Y.S.2d 567 [4th Dept. 2011], lv denied 16 N.Y.3d 900, 926 N.Y.S.2d 35, 949 N.E.2d 983 [2011]).

Although defendant's contention that his guilty plea was not voluntarily, knowingly and intelligently entered survives the waiver of the right to appeal (see People v. McKay, 5 A.D.3d 1040, 1041, 773 N.Y.S.2d 923 [4th Dept. 2004], lv denied 2 N.Y.3d 803, 781 N.Y.S.2d 302, 814 N.E.2d 474 [2004]), that contention is unpreserved for our review because defendant failed to move to withdraw his guilty plea or to vacate the judgment of conviction (see People v. Rojas, 147 A.D.3d 1535, 1536, 47 N.Y.S.3d 813 [4th Dept. 2017], lv denied 29 N.Y.3d 1036, 62 N.Y.S.3d 305, 84 N.E.3d 977 [2017];  People v. Brown, 115 A.D.3d 1204, 1205, 982 N.Y.S.2d 255 [4th Dept. 2014], lv denied 23 N.Y.3d 1060, 994 N.Y.S.2d 319, 18 N.E.3d 1140 [2014]), and “nothing on the face of the record calls into question the voluntariness of the plea or casts significant doubt upon defendant's guilt” (People v. Karlsen, 147 A.D.3d 1466, 1468, 47 N.Y.S.3d 584 [4th Dept. 2017], lv denied 29 N.Y.3d 1082, 64 N.Y.S.3d 172, 86 N.E.3d 259 [2017];  see People v. Rodriguez, 156 A.D.3d 1433, 1434, 65 N.Y.S.3d 877 [4th Dept. 2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018]).  In any event, defendant's contention lacks merit inasmuch as it is based solely on an unsupported claim of innocence (see People v. Haffiz, 19 N.Y.3d 883, 884–885, 951 N.Y.S.2d 690, 976 N.E.2d 216 [2012];  see generally People v. Dixon, 29 N.Y.2d 55, 57, 323 N.Y.S.2d 825, 272 N.E.2d 329 [1971]), which is belied by his statements during the plea colloquy (see People v. Dale, 142 A.D.3d 1287, 1289, 38 N.Y.S.3d 333 [4th Dept. 2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017];  see generally Dixon, 29 N.Y.2d at 57, 323 N.Y.S.2d 825, 272 N.E.2d 329).