THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RANDY COLUCCI SR DEFENDANT APPELLANT

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

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. RANDY COLUCCI, SR., DEFENDANT–APPELLANT.

KA 11–01157

Decided: April 20, 2012

PRESENT:  SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ. KATHLEEN E. CASEY, BARKER, FOR DEFENDANT–APPELLANT. MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the second degree (Penal Law § 125.15[1] ).   We conclude that defendant's contentions regarding his waiver of the right to challenge the judgment of conviction by motion pursuant to CPL articles 330 and 440 or by writ of coram nobis are premature (see People v. Hill, _ AD3d _, _ [Mar. 16, 2012] ).   It is settled that the courts of this State may decide only controversies that are presently justiciable.   To be justiciable, a controversy must “involve present, rather than hypothetical, contingent or remote, prejudice” to a party (American Ins. Assn. v. Chu, 64 N.Y.2d 379, 383, appeal dismissed and cert. denied 474 U.S. 803).   Here, defendant's contentions with respect to such postjudgment relief “seek [ ] merely an advisory opinion” (Hill, _ AD3d at _).

We reject defendant's further contention that his waiver of the right to appeal was invalid (see generally People v. Lopez, 6 NY3d 248, 256).   Defendant signed a written waiver of the right to appeal, and the plea colloquy demonstrates that he knowingly, intelligently and voluntarily waived the right to appeal (see People v. James, 71 AD3d 1465, 1465).   Further, the record establishes that he “ ‘understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ “ (People v. Dunham, 83 AD3d 1423, 1424, lv denied 17 NY3d 794, quoting Lopez, 6 NY3d at 256).

Frances E. Cafarell

Clerk of the Court