| People v King |
| 2008 NY Slip Op 00911 [48 AD3d 1177] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Tommy R.King, Appellant. |
—[*1] Tommy R. King, defendant-appellant pro se. Matthew J. Murphy, III, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered May18, 2006. The judgment convicted defendant, upon his plea of guilty, of attempted robbery in thefirst degree.
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 ofattempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [4]). We rejectthe contention of defendant that his waiver of the right to appeal is contrary to public policy (see People v Wilson, 38 AD3d1326 [2007], lv denied 9 NY3d 853 [2007]; People v Aguayo, 37 AD3d 1081 [2007], lv denied 8 NY3d981 [2007]). The record does not support defendant's further contention that County Courtimplied during the plea colloquy that the waiver of the right to appeal was automatic. Indeed, therecord of the plea colloquy establishes that the court explained to defendant that the waiver was acondition of the plea bargain, and we conclude that defendant's waiver of the right to appeal wasknowing, intelligent and voluntary (seePeople v Lopez, 6 NY3d 248, 256 [2006]). The valid waiver by defendant of the right toappeal encompasses his challenge to the severity of the sentence and his right to invoke ourdiscretionary power to reduce the sentence pursuant to CPL 470.15 (6) (b) (see Lopez, 6NY3d at 256).
To the extent that the further contention of defendant that he was denied effective assistanceof counsel survives his plea and his waiver of the right to appeal (see People v Eastman, 45 AD3d1411 [2007]), we reject that contention (see generally People v Ford, 86 NY2d 397,404 [1995]). The record reflects that defendant signed a waiver of indictment and acknowledgedhis understanding that he was giving up his right to have the matter reviewed and considered by agrand jury. The record of the plea proceeding indicates that the court was satisfied with thesufficiency of the waiver of indictment, although we are unable to discern whether the courtexecuted an order to that effect pursuant to CPL 195.30. Even assuming, arguendo, that the courtdid not execute such an order, however, we conclude on the record before us that such failure"was a ministerial error with no resultant prejudice to defendant" (People v Waid, 26 AD3d 734,[*2]735 [2006], lv denied 6 NY3d 839 [2006]). Becausethe court had a valid superior court information before it when it accepted defendant's plea, wereject defendant's contention that the court lacked jurisdiction over the matter (see People vVandebogart, 277 AD2d 712, 713 [2000]).
Finally, contrary to defendant's contention, attempted robbery in the first degree is a lesserincluded offense of robbery in the first degree (see CPL 1.20 [37]), and thus the courtproperly accepted defendant's plea to the lesser offense. Present—Scudder, P.J., Hurlbutt,Lunn, Fahey and Pine, JJ.