| People v McKeon |
| 2010 NY Slip Op 08303 [78 AD3d 1617] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Richard J.McKeon, Jr., Appellant. |
—[*1] Joseph V. Cardone, District Attorney, Albion, for respondent.
Appeal from a judgment of the Orleans County Court (Robert C. Noonan, A.J.), renderedFebruary 27, 2009. The judgment convicted defendant, upon his plea of guilty, of manslaughter in thefirst 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, ofmanslaughter in the first degree (Penal Law § 125.20 [2]). Contrary to defendant's contention,the record of the plea proceeding in County Court establishes that, pursuant to the terms of the pleaagreement, defendant agreed to waive the right to appeal. The record further establishes that "defendantunderstood that the right to appeal is separate and distinct from those rights automatically forfeited upona plea of guilty" and that his waiver of the right to appeal was knowingly, voluntarily, and intelligentlyentered (People v Lopez, 6 NY3d248, 256 [2006]). Contrary to defendant's contention, certain comments made by the SupremeCourt Justice who sentenced defendant, despite the fact that the plea was entered in County Court,were not relevant to, nor did they invalidate, defendant's valid waiver of the right to appeal (seegenerally People v Moissett, 76 NY2d 909, 912 [1990]).
Although the contention of defendant that the plea was not knowingly and voluntarily enteredsurvives his waiver of the right to appeal, he failed to preserve that contention for our review by failingto move to withdraw his guilty plea or to vacate the judgment of conviction on that ground (see People v Thomas, 72 AD3d 1483[2010]). In any event, his contention is without merit. In support of that contention, defendant assertsthat his actions may have been justified and that County Court mistakenly advised him that he had aduty to retreat from his home. Although we agree with defendant that the court mistakenly advised himconcerning his duty to retreat (see Penal Law § 35.15 [2] [a] [i]), we neverthelessconclude that the court's error did not render the plea invalid. Defendant did not indicate in his recitationof the facts underlying the crime that he reasonably believed that the victim was using or was about touse deadly physical force (see § 35.15 [2] [a]; see generally People v Lopez,71 NY2d 662, 666 [1988]; People v McKnight, 256 AD2d 1194 [1998], lv denied93 NY2d 876 [1999]).[*2]
The further contention of defendant that County Court erred inrefusing to suppress his statements to the police as well as the evidence seized from his home isencompassed by his waiver of the right to appeal (see People v Kemp, 94 NY2d 831, 833[1999]; People v Aiken, 73 AD3d1450 [2010], lv denied 15 NY3d 771 [2010]). Finally, defendant failed to preserve forour review his contention that the orders of protection, which were amended following their issuance,should be vacated (see People v Nieves,2 NY3d 310, 315-317 [2004]; Peoplev Shampine, 31 AD3d 1163, 1164 [2006]), and we decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Present—Martoche, J.P., Centra, Carni, Lindley and Pine, JJ.