| People v Capoccetta |
| 2009 NY Slip Op 02136 [60 AD3d 1382] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v LuigiCapoccetta, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), renderedAugust 9, 2007. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second 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 ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). CountyCourt properly denied defendant's motion to withdraw the plea. The record of the pleaproceeding establishes that the plea was knowingly, voluntarily and intelligently entered and,contrary to defendant's contention, "a plea agreement is not inherently coercive or invalid simplybecause it affords a benefit to a loved one, as long as the plea itself is knowingly, voluntarily andintelligently made" (People v Etkin, 284 AD2d 579, 580 [2001], lv denied 96NY2d 862 [2001]). We reject the further contention of defendant that he is entitled to withdrawhis plea based upon his unilateral mistake with respect to the sentence that his brother, acodefendant, would receive. "A defendant will not be heard to challenge his guilty plea when theminutes of the plea [proceeding] are unequivocal and refute any contention of an off-the-recordpromise" (People v Frederick, 45 NY2d 520, 526 [1978]). The valid waiver by defendantof the right to appeal encompasses his challenge to the severity of the sentence (see People vHidalgo, 91 NY2d 733, 737 [1998]). Present—Scudder, P.J., Smith, Peradotto, Carniand Green, JJ.