People v Garner

2008 NY Slip Op 05214

Decided on June 6, 2008

Appellate Division, Fourth Department

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

Decided on June 6, 2008


PRESENT: SCUDDER, P.J., HURLBUTT, CENTRA, FAHEY, AND PERADOTTO, JJ.
828 KA 06-03783




Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered November 16, 2006. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in the first degree.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MICHAEL C. WALSH OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.


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 burglary in the first degree (Penal Law §§ 110.00, 140.30 [2]). Contrary to the contention of defendant, the record establishes that he knowingly, intelligently and voluntarily waived his right to appeal (see People v Lopez, 6 NY3d 248, 256; People v Tantao, 41 AD3d 1274, lv denied 9 NY3d 882). "County Court was not required to engage in any particular litany' in order to obtain a valid waiver of the right to appeal" (Tantao, 41 AD3d at 1274-1275, quoting People v Moissett, 76 NY2d 909, 910). That valid waiver by defendant of the right to appeal encompasses his challenges to the court's suppression ruling (see People v Kemp, 94 NY2d 831, 833; People v Gilbert, 17 AD3d 1164, lv denied 5 NY3d 762), as well as his challenge to the severity of the sentence (see People v Hidalgo, 91 NY2d 733, 737).
Entered: June 6, 2008
JoAnn M. Wahl
Clerk of the Court