| People v Povoski |
| 2010 NY Slip Op 08194 [78 AD3d 1533] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Frank J. Povoski,Jr., Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (John J. Ark, J.), rendered July26, 2006. The judgment convicted defendant, upon his plea of guilty, of arson in the third degree (fourcounts) and criminal mischief 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 of fourcounts of arson in the third degree (Penal Law § 150.10 [1]) and one count of criminal mischiefin the second degree (§ 145.10). Defendant contends that his plea was not knowing andvoluntary because Supreme Court, Monroe County, erred in requiring as a condition of the plea thatdefendant withdraw a notice of appeal from a prior judgment entered in Ontario County. Although thatcontention survives defendant's waiver of the right to appeal, defendant failed to preserve thatcontention for our review (see People vPoleun, 75 AD3d 1109 [2010]; People v Diaz, 62 AD3d 1252 [2009], lv denied 12 NY3d 924[2009]). In any event, that contention is without merit. The record establishes that the court indicated todefendant that its determination whether the sentences imposed on the conviction would runconcurrently with the sentence previously imposed in Ontario County depended upon whetherdefendant waived his right to appeal from the Ontario County judgment. The court further explained todefendant that he would be asked at sentencing to sign a written waiver of his right to appeal from thejudgment entered in Ontario County, and defendant signed that waiver. Thus, we conclude that thecourt did not impermissibly foreclose our review of those contentions raised in the appeal from theOntario County judgment that survived defendant's waiver of the right to appeal in that case (seegenerally People v Callahan, 80 NY2d 273, 285 [1992]; People v Seaberg, 74 NY2d 1,10-11 [1989]). Indeed, defendant did not withdraw his notice of appeal from that judgment and, in thatprior appeal, we concluded that defendant's waiver of the right to appeal was knowing and voluntary,despite the fact that it was executed as a condition of the plea entered in Monroe County (People v Povoski, 55 AD3d 1221[2008], lv denied 11 NY3d 929 [2009]). Present—Scudder, P.J., Martoche, Centra,Fahey and Green, JJ.