PEOPLE v. NICKELL (2008)

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered May 24, 2006, convicting defendant upon her plea of guilty of the crime of robbery in the second degree.

In satisfaction of a three-count indictment, defendant pleaded guilty to the crime of robbery in the second degree and was sentenced to, among other things, the bargained-for term of imprisonment of eight years to be followed by five years of postrelease supervision.   Additionally, defendant waived her right to appeal both orally and in writing.   The charges arose from defendant's role as the getaway driver during the armed robbery of a restaurant in the Town of Amsterdam, Montgomery County.   Claiming that her appeal waiver was invalid and her sentence was harsh and excessive, defendant now appeals and we affirm.

 Defendant claims that her waiver of appeal was invalid because, at the time of her appeal waiver, County Court did not expressly distinguish between those appellate issues that are encompassed by a valid waiver and those that survive such a waiver.   It is well settled that “ ‘trial courts are not required to engage in any particular litany during an allocution’ ” in order to obtain a valid waiver of a plethora of rights (People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999], quoting People v. Moissett, 76 N.Y.2d 909, 910-911, 563 N.Y.S.2d 43, 564 N.E.2d 653 [1990];  see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998];  People v. Muniz, 91 N.Y.2d 570, 574-575, 673 N.Y.S.2d 358, 696 N.E.2d 182 [1998] ).   Under this guiding principle, trial courts need not expressly delineate for a defendant those appellate issues that are foreclosed by a waiver of the right to appeal, and those that survive, in order for the court to obtain a valid appeal waiver (see People v. Kemp, 94 N.Y.2d at 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;  People v. Hidalgo, 91 N.Y.2d at 737, 675 N.Y.S.2d 327, 698 N.E.2d 46;  People v. Muniz, 91 N.Y.2d at 574-575, 673 N.Y.S.2d 358, 696 N.E.2d 182;  People v. Wagoner, 6 A.D.3d 985, 986, 777 N.Y.S.2d 522 [2004];  People v. Umber, 2 A.D.3d 1051, 1052, 769 N.Y.S.2d 632 [2003], lv. denied 2 N.Y.3d 747, 778 N.Y.S.2d 472, 810 N.E.2d 925 [2004] ).   As a result, the basis for defendant's claim of invalidity is unavailing.   Consequently, inasmuch as defendant's waiver of her right to appeal was knowingly, intelligently and voluntarily made, she is precluded from asserting her claim that her sentence is harsh and excessive (see People v. Lopez, 6 N.Y.3d 248, 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Hidalgo, 91 N.Y.2d at 736-737, 675 N.Y.S.2d 327, 698 N.E.2d 46;  People v. Hopkins, 46 A.D.3d 1107, 1108, 848 N.Y.S.2d 404 [2007] ).

ORDERED that the judgment is affirmed.

SPAIN, J.

MERCURE, J.P., ROSE, LAHTINEN and KAVANAGH, JJ., concur.