THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. VINCENT A. WALTERS, DEFENDANT–APPELLANT. (APPEAL NO. 1.)

KA 14–01481

Decided: September 29, 2017

PRESENT:  WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND WINSLOW, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20[1] ) and, in appeal No. 2, he appeals from a judgment convicting him upon his guilty plea of robbery in the first degree (§ 160.15[3] ).  In both appeals, defendant's valid waiver of the right to appeal encompasses his contention that County Court erred in refusing to suppress his statements to police (see People v. Kemp, 94 N.Y.2d 831, 833;  People v. Lynn, 144 AD3d 1491, 1492, lv denied 28 NY3d 1186;  People v. Rosado, 26 AD3d 891, 892, lv denied 6 NY3d 838), as well as his contention that the sentence is unduly harsh and severe (see People v. Lopez, 6 NY3d 248, 255–256;  People v. Hidalgo, 91 N.Y.2d 733, 737;  People v. Morales, 148 AD3d 1638, 1639, lv denied 29 NY3d 1083).

Although defendant's contention in both appeals that the pleas were not knowingly, voluntarily, and intelligently entered survives his valid waiver of the right to appeal (see People v. Green, 122 AD3d 1342, 1343), that contention is not preserved for our review (see People v. Darling, 125 AD3d 1279, 1279, lv denied 25 NY3d 1071).  Contrary to defendant's further contention, his youthful age, on its own, did not deny him the capacity either to plead guilty or to subsequently seek to withdraw his pleas such that the preservation rule should not apply (see generally People v. Peque, 22 NY3d 168, 182;  People v. Lopez, 71 N.Y.2d 662, 665–666).  In any event, the record establishes that defendant's pleas were knowing, voluntary, and intelligent (see Green, 122 AD3d at 1343).

Mark W. Bennett

Clerk of the Court