| People v Diaz |
| 2010 NY Slip Op 03189 [72 AD3d 1349] |
| April 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v IsabelinoDiaz, Appellant. |
—[*1] James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered February 17, 2009, convicting defendant upon his plea of guilty of the crime ofattempted murder in the second degree.
In April 2008, defendant shot his 16-year-old stepdaughter multiple times, striking her in thehead and once in the hand that she had raised in an attempt to protect herself. As a result of theincident, defendant was charged by indictment with attempted murder in the second degree,criminal use of a firearm in the first degree, assault in the first degree and two counts of criminalpossession of a weapon in the second degree. After undergoing two court-ordered psychiatricexaminations confirming his competency to stand trial, defendant pleaded guilty to attemptedmurder in the second degree in full satisfaction of the indictment, waived his right to appeal andwas sentenced, pursuant to the negotiated plea agreement, to 20 years in prison followed by fiveyears of postrelease supervision. Defendant appeals.
Defendant asserts that the record fails to demonstrate a knowing, voluntary and intelligentwaiver of his right to appeal. We disagree. Defendant, assisted by counsel, executed a detailedwritten appeal waiver during his plea colloquy. The written waiver reflects defendant'sunderstanding that the waiver of his right to appeal is separate and distinct from the rights herelinquished by pleading guilty, indicates that defendant was provided a full opportunity to [*2]discuss the waiver and its consequences with his attorney, andconfirms that defendant was waiving the right voluntarily (see People v McKenzie, 66 AD3d 1056, 1056 [2009]; People v Ramirez, 42 AD3d 671,671-672 [2007]). Moreover, in addition to addressing on the record the ramifications of waivingthe right to appeal, County Court ensured that defendant had all the time he needed to discuss thematter with counsel prior to executing the written waiver. After defendant had done so, CountyCourt inquired whether defendant had any remaining questions for his attorney regarding theappellate rights he was forfeiting. Defendant responded "no." Under such circumstances, theappeal waiver is valid (see People vLopez, 6 NY3d 248, 256 [2006]; People v Campbell, 67 AD3d 1125, 1125 [2009], lv denied14 NY3d 770 [2010]; People vGilmour, 61 AD3d 1122, 1123 [2009], lv denied 12 NY3d 925 [2009]; People v Getter, 52 AD3d 1117,1118 [2008]).
Defendant's challenges to the voluntariness of his plea and the factual sufficiency of the pleaallocution—premised on County Court's purported failure to ensure he knowingly waiveda possible insanity defense—are not preserved given his failure to move to withdraw theplea or vacate the judgment of conviction (see People v Greene, 274 AD2d 842, 843[2000], lv denied 95 NY2d 963 [2000]; People v Hicks, 201 AD2d 831, 832[1994], lv denied 83 NY2d 911 [1994]). Defendant's argument regarding the sufficiencyof his plea allocution is likewise precluded by his valid waiver of appeal, as specifically set forthin the written waiver (see People vStokely, 49 AD3d 966, 968 [2008]; People v Ramirez, 45 AD3d 1108, 1108 [2007]; People v Mosher, 45 AD3d 970,971 [2007], lv denied 10 NY3d 814 [2008]). In any event, we would find defendant'sguilty plea to be knowing, voluntary and intelligent (see People v Greene, 274 AD2d at843; People v Dupont, 268 AD2d 612, 613 [2000], lv denied 95 NY2d 834[2000]; People v Millis, 266 AD2d 581, 581-582 [1999], lv denied 94 NY2d 826[1999]).
Cardona, P.J., Mercure, Kavanagh and Garry, JJ., concur. Ordered that the judgment isaffirmed.