| People v Povoski |
| 2008 NY Slip Op 07277 [55 AD3d 1221] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Frank J.Povoski, Jr., Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Kathleen H. Valone of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), renderedSeptember 2, 2005. The judgment convicted defendant, upon a jury verdict, of robbery in thesecond degree, forgery in the second degree and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment of Ontario County Court convicting him upon ajury verdict of robbery in the second degree (Penal Law § 160.10 [2] [a]), forgery in thesecond degree (§ 170.10 [1]) and assault in the second degree (§ 120.05 [6]),defendant challenges the weight and legal sufficiency of the evidence, the court's response to ajury note, and the sentence imposed. Following that conviction, defendant pleaded guilty inSupreme Court, Monroe County, to two separate indictments charging him with variousunrelated arson and conspiracy crimes. As a condition of that plea, defendant waived his right toappeal from the Ontario County judgment, and at sentencing he signed a written waiver of theright to appeal in open court. We reject the contention of defendant that the waiver wasineffective because it was part of a plea bargain executed in Monroe County affecting a judgmentof conviction from another county. " '[T]here is nothing offensive, constitutionally, statutorily oras a matter of policy, in permitting a defendant to waive rights to appeal from judgments of morethan one conviction as part of a negotiated plea in situations such as this' " (People v Holmes,294 AD2d 871, 871 [2002], lv denied 98 NY2d 730 [2002]; see also People vDickerson, 309 AD2d 966, 967 [2003], lv denied 1 NY3d 596 [2004]).
We conclude that defendant's waiver of the right to appeal from the Ontario Countyjudgment was knowing and voluntary (see generally People v Lopez, 6 NY3d 248, 256 [2006]). Thatwaiver encompasses all of defendant's challenges to the Ontario County conviction (see People v Joyner, 19 AD3d1129 [2005]; People v Clark, 223 AD2d 722 [1996], lv denied 90 NY2d1010 [1997]; see generally People v Seaberg, 74 NY2d 1, 7-9 [1989]), with the exceptionof the challenge by defendant to the sentence on the ground that the court allegedly penalizedhim for exercising his right to a trial. That challenge "involve[s] a right of constitutionaldimension going to the very heart of the process" (Lopez, 6 NY3d at 255 [internalquotation marks omitted]). Defendant, however, failed [*2]topreserve that challenge for our review (see People v Hurley, 75 NY2d 887, 888 [1990];People v Gordon, 45 AD3d1357 [2007], lv denied 10 NY3d 811 [2008]) and, in any event, it lacks merit. " 'Themere fact that a sentence imposed after trial is greater than that offered in connection with pleanegotiations is not proof that defendant was punished for asserting his right to trial' " (People v Irrizarry, 37 AD3d 1082,1083 [2007], lv denied 8 NY3d 946 [2007]; see People v Smith, 21 AD3d 1277, 1278 [2005], lv denied7 NY3d 763 [2006]). Present—Scudder, P.J., Hurlbutt, Lunn, Green and Gorski, JJ.