THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. KEITH TONEY DEFENDANT APPELLANT

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. KEITH A. TONEY, DEFENDANT–APPELLANT.

KA 15–01684

Decided: September 29, 2017

PRESENT:  SMITH, J.P., DEJOSEPH, CURRAN, TROUTMAN, AND WINSLOW, JJ. D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT. JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN 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 attempted criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39[1] ).  We reject defendant's contention that he did not knowingly waive his right to appeal.  County Court “expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waive his right to appeal” (People v. McCrea, 140 AD3d 1655, 1655, lv denied 28 NY3d 933 [internal quotation marks omitted] ) and, contrary to defendant's contention, the record establishes that the court did not conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea (see id.).  The court also specifically explained that the waiver included any challenge to the severity of the sentence, thereby foreclosing any such challenge on appeal (see People v. Lopez, 6 NY3d 248, 255–256).

Defendant further contends that his plea was not knowingly, intelligently, and voluntarily entered.  Although a challenge to the voluntariness of the plea survives a valid waiver of the right to appeal (see People v. Shaw, 133 AD3d 1312, 1313, lv denied 26 NY3d 1150), defendant failed to preserve his contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v. Garcia–Cruz, 138 AD3d 1414, 1414–1415, lv denied 28 NY3d 929;  see generally People v. Wisniewski, 128 AD3d 1481, 1481, lv denied 26 NY3d 937).  In any event, defendant's “ ‘yes' and ‘no’ answers during the plea colloqu[y] do not invalidate his guilty plea[ ]” (People v. Russell, 133 AD3d 1199, 1199, lv denied 26 NY3d 1149;  see People v. Alicea, 148 AD3d 1662, 1663, lv denied _ NY3d _ [Aug. 3, 2017];  People v. Dunham, 83 AD3d 1423, 1424, lv denied 17 NY3d 794).

Mark W. Bennett

Clerk of the Court