| People v Ramos |
| 2008 NY Slip Op 08837 [56 AD3d 1180] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Julio AntoniaRamos, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), renderedMarch 13, 2007. The judgment convicted defendant, upon his plea of guilty, of murder in thesecond 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 ofmurder in the second degree (Penal Law § 125.25 [1]). The contention of defendant thathis plea was involuntary based on his failure to recite the facts underlying the crime is actually achallenge to the factual sufficiency of the plea allocution (see People v Cameron, 55 AD3d 1382 [2008]). Although defendantpreserved that challenge for our review by moving to withdraw his plea, the waiver by defendantof his right to appeal encompasses that challenge (see id.). In any event, defendant'schallenge is without merit. The unequivocal affirmative responses of defendant to County Court'squestions established all of the essential elements of murder in the second degree (see Peoplev Smith, 227 AD2d 655, 656 [1996], lv denied 88 NY2d 994 [1996]; see also People v Pickett, 49 AD3d1207 [2008], lv denied 10 NY3d 963 [2008]; People v Williams, 35 AD3d 971, 972 [2006], lv denied 8NY3d 928 [2007]). Defendant further contends that his plea was involuntary because he did notunderstand the allegedly ambiguous terms of the court's sentencing commitment, which were setforth during the plea colloquy and to which defendant agreed. We reject that contentioninasmuch as the terms of the sentencing commitment were " 'susceptible to but one interpretation'" (People v Reyes, 167 AD2d 920, 921 [1990], lv denied 77 NY2d 842 [1991],quoting People v Cataldo, 39 NY2d 578, 580 [1976]). Present—Scudder, P.J.,Martoche, Lunn, Peradotto and Green, JJ.