PEOPLE v. HOLIFIELD

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Dashaun M. HOLIFIELD, Defendant-Appellant.

Decided: November 17, 2006

PRESENT:  HURLBUTT, A.P.J., SCUDDER, GORSKI, CENTRA, AND GREEN, JJ. Frank H. Hiscock, Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant-Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him, upon his plea of guilty, of two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and one count of criminal sale of a controlled substance in the third degree (§ 220.39[1] ).   Contrary to the contention of defendant, his waiver of the right to appeal was voluntary (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145), and it did not violate public policy (see generally People v. Muniz, 91 N.Y.2d 570, 573-574, 673 N.Y.S.2d 358, 696 N.E.2d 182).   Defendant's contention with respect to the severity of the sentence is encompassed by the waiver of the right to appeal (see Lopez, 6 N.Y.3d at 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).   Although the further contention of defendant that his plea was not voluntarily entered survives the waiver of the right to appeal (see People v. DeJesus, 248 A.D.2d 1023, 670 N.Y.S.2d 140, lv. denied 92 N.Y.2d 878, 678 N.Y.S.2d 26, 700 N.E.2d 564), the record establishes that defendant's contention lacks merit.

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

MEMORANDUM: