SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
November 10, 2011
THE PEOPLE OF THE STATE OF NEW YORK,
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered December 9, 2009.
People v Hicks
Decided on November 10, 2011
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.
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
The judgment convicted defendant, upon his plea of guilty, of attempted robbery in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
On appeal from a judgment convicting him upon a plea of guilty of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 ), defendant contends that his waiver of the right to appeal was invalid. We reject that contention. Despite defendant's contention to the contrary, the record establishes that he knowingly, intelligently and voluntarily waived his right to appeal as a condition of the plea bargain (see generally People v Lopez, 6 NY3d 248, 256). Supreme Court "engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" (People v James, 71 AD3d 1465, 1465 [internal quotation marks omitted]), and the record establishes that defendant " 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). The challenge by defendant to the court's suppression ruling is encompassed by his valid waiver of the right to appeal (see People v Kemp, 94 NY2d 831, 833; People v Williams, 49 AD3d 1281, lv denied 10 NY3d 940).
Entered: November 10, 2011
Patricia L. Morgan Clerk of the Court
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