PEOPLE v. GILBERT

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Nathaniel GILBERT, Defendant-Appellant.

Decided: April 29, 2005

PRESENT:  KEHOE, J.P., GORSKI, SMITH, PINE, AND HAYES, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him, upon a plea of guilty, of attempted rape in the first degree (Penal Law §§ 110.00, 130.35[1] ) and imposing the agreed-upon sentence.   We reject the contention of defendant that his statements were insufficient to establish that he knowingly, intelligently and voluntarily waived the right to appeal.   “[T]rial courts are not required to engage in any particular litany during an allocution in order to obtain a valid guilty plea in which defendant waives a plethora of rights,” including the right to appeal (People v. Moissett, 76 N.Y.2d 909, 910-911, 563 N.Y.S.2d 43, 564 N.E.2d 653).   Defendant's responses to County Court's questions unequivocally established that defendant understood the proceedings and was voluntarily waiving the right to appeal.   His unrestricted waiver of the right to appeal encompasses his challenges to the court's suppression ruling (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;  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 [2005] ), including the issue of whether he was read his Miranda rights (see generally People v. Carpenter, 13 A.D.3d 1193, 786 N.Y.S.2d 683, lv. denied 4 N.Y.3d 797, 795 N.Y.S.2d 172, 828 N.E.2d 88 [2005];  People v. Taylor, 302 A.D.2d 868, 754 N.Y.S.2d 480, lv. denied 99 N.Y.2d 658, 760 N.Y.S.2d 123, 790 N.E.2d 297), and further encompasses his challenge to the severity of the sentence (see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;  People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46;  People v. Allen, 82 N.Y.2d 761, 763, 603 N.Y.S.2d 820, 623 N.E.2d 1170).

 Contrary to the further contention of defendant, the court did not err in asking questions of the victim to clarify her statement made pursuant to CPL 380.50(2), as the court has broad powers to determine facts pertinent to sentencing (see generally People v. Hemmings, 2 N.Y.3d 1, 6, 776 N.Y.S.2d 201, 808 N.E.2d 336, rearg. denied 2 N.Y.3d 824, 782 N.Y.S.2d 241, 815 N.E.2d 1106).   Furthermore, defendant was not denied effective assistance of counsel by his attorney's failure to question the victim thereafter, as the statute does not permit cross-examination at that juncture and defendant failed to present any information to the court in mitigation or explanation despite having been given the opportunity to do so.

We have considered defendant's remaining contentions and conclude that they are without merit.

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

MEMORANDUM: