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The People of the State of New York v. Robert R. Dunham

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


April 1, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
ROBERT R. DUNHAM,
DEFENDANT-APPELLANT.

Appeal from a judgment of the Oswego County Court (Spencer J. Ludington, A.J.), rendered July 15, 2009. The judgment convicted defendant, upon his plea of guilty, of attempted forgery in the second degree and grand larceny in the fourth degree.

People v Dunham

Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 1, 2011

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.

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 forgery in the second degree (Penal Law §§ 110.00, 170.10 [1]) and grand larceny in the fourth degree (§ 155.30 [8]). We reject defendant's contention that his waiver of the right to appeal was not knowing and voluntary. Although "a trial court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned, it must make certain that a defendant's understanding of the terms and conditions of a plea agreement is evident on the face of the record" (People v Lopez, 6 NY3d 248, 256; see People v McDonald, 270 AD2d 955, lv denied 95 NY2d 800). "The record must establish that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" (Lopez, 6 NY3d at 256). Here, the record establishes that defendant indicated that he had spoken with defense counsel and understood that he was waiving his right to appeal as a condition of the plea. Further, defendant's monosyllabic affirmative responses to questioning by County Court do not render his plea unknowing and involuntary (see People v VanDeViver, 56 AD3d 1118, lv denied 11 NY3d 931, rearg denied 12 NY3d 788), and the fact that defendant was not informed that he could challenge County Court's suppression ruling on appeal did not render the plea involuntary (see generally People v Kemp, 94 NY2d 831). In any event, defendant's challenge to the court's suppression ruling is encompassed by his waiver of the right to appeal (see id. at 833). Additionally, that challenge is without merit (see People v Steward, 88 NY2d 496, 501-502, rearg denied 88 NY2d 1018; People v Scaccia, 6 AD3d 1105, 1105-1106, lv denied 3 NY3d 681). Although defendant's contention that his plea was involuntary survives his waiver of the right to appeal, defendant failed to preserve that contention by moving to withdraw the plea or set aside the conviction (see People v Busch, 60 AD3d 1393, lv denied 12 NY3d 913), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Finally, although defendant's contention that the court failed to apprehend the extent of its sentencing discretion survives his waiver of the right to appeal and does not require preservation (see People v Schafer, 19 AD3d 1133), that contention is without merit. The sentence imposed was in accordance with the plea agreement, and there is no support for defendant's contention in the record before us.

Entered: April 1, 2011

Patricia L. Morgan Clerk of the Court

20110401

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