THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JASON SLISHEVSKY DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. JASON SLISHEVSKY, DEFENDANT–APPELLANT.

KA 14–02016

Decided: April 28, 2017

PRESENT:  CARNI, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ. FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][b] ), defendant contends that his waiver of the right to appeal is not valid.  We reject that contention and conclude that County Court engaged defendant “in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” (People v. Marshall, 144 AD3d 1544, 1545 [internal quotation marks omitted];  see People v. Korber, 89 AD3d 1543, 1543, lv denied 19 NY3d 864).  “[A] trial court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned” (People v. Lopez, 6 NY3d 248, 256), and “[t]he plea allocution as a whole establishes that defendant's waiver of the right to appeal was knowing, intelligent, and voluntary” (People v. Brown, 281 A.D.2d 962, 962, lv denied 96 N.Y.2d 899).  Here, we conclude that the court “made clear that the waiver of the right to appeal was a condition of [the] plea, not a consequence thereof, and the record reflects that defendant understood that the waiver of the right to appeal was ‘separate and distinct from those rights automatically forfeited upon a plea of guilty’ “ (People v. Graham, 77 AD3d 1439, 1439, lv denied 15 NY3d 920, quoting Lopez, 6 NY3d at 256).  The valid waiver of the right to appeal forecloses our review of defendant's contention that the sentence is unduly harsh and severe (see generally Lopez, 6 NY3d at 255–256;  People v. Hidalgo, 91 N.Y.2d 733, 737), as well as his constitutional challenges, which in any event we have already determined to be without merit (see People v. Slishevsky, 97 AD3d 1148, 1151, lv denied 20 NY3d 1015).

Frances E. Cafarell

Clerk of the Court