PEOPLE v. SCHMITT

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. James K. SCHMITT, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, KEHOE, MARTOCHE, AND HAYES, JJ. Timothy P. Murphy, Lockport, for Defendant-Appellant. Matthew J. Murphy, III, District Attorney, Lockport (Thomas H. Brandt of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him upon his plea of guilty of murder in the second degree (Penal Law § 125.25[1] ).   Defendant contends that his waiver of the right to appeal was invalid because County Court failed to conduct a sufficient inquiry to ascertain whether the waiver was knowingly, voluntarily and intelligently entered.   We reject that contention (see generally People v. Brown, 303 A.D.2d 989, 755 N.Y.S.2d 686).   The record establishes that the court asked defendant, inter alia, whether he had a clear mind, whether he understood the proceedings, whether he had sufficient time to discuss the matter with his attorney, and whether he understood that he was giving up certain rights.   With respect to the waiver of the right to appeal, defendant indicated that he understood that he was giving up his right to challenge any rulings made by the court, including the court's ruling following the Huntley hearing.   “Defendant's responses to [the c]ourt's questions unequivocally established that defendant understood the proceedings and was voluntarily waiving the right to appeal” (People v. Gilbert, 17 A.D.3d 1164, 1164, 793 N.Y.S.2d 847;  see People v. Jeter, 15 A.D.3d 885, 788 N.Y.S.2d 795, lv. denied 4 N.Y.3d 887, 798 N.Y.S.2d 732, 831 N.E.2d 977).   The waiver by defendant of the right to appeal encompasses his contentions with respect to the court's suppression ruling and the severity of the sentence (see People v. Kemp, 94 N.Y.2d 831, 703 N.Y.S.2d 59, 724 N.E.2d 754;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46;  Gilbert, 17 A.D.3d at 1164, 793 N.Y.S.2d 847;  People v. Haupt, 16 A.D.3d 1079, 791 N.Y.S.2d 801;  People v. Pittman, 13 A.D.3d 1145, 1146, 787 N.Y.S.2d 751, lv. denied 4 N.Y.3d 801, 795 N.Y.S.2d 177, 828 N.E.2d 93).

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

MEMORANDUM: