People v Tabb

2011 NY Slip Op 00907

Decided on February 10, 2011

Appellate Division, Fourth Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 10, 2011


PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GORSKI, JJ.
180 KA 09-00724




Appeal from a judgment of the Niagara County Court (Richard C. Kloch, Sr., A.J.), rendered September 4, 2008. The judgment convicted defendant, upon his plea of guilty, of manslaughter in the first degree.


ROBERT M. PUSATERI, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.


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 manslaughter in the first degree (Penal Law § 125.20 [1]). Defendant was indicted for murder in the second degree (§ 125.25 [1]) and criminal possession of a weapon in the second degree (§ 265.03 [1] [b]), but he pleaded guilty to manslaughter on the condition that he waive his right to appeal. Contrary to defendant's contention, the record demonstrates that he validly waived his right to appeal. We conclude that County Court did not indicate to defendant that he automatically forfeited his right to appeal upon pleading guilty (cf. People v Moyett, 7 NY3d 892). Rather, the court "engaged in a fuller colloquy, describing the nature of the right being waived without lumping that right into the panoply of trial rights automatically forfeited upon pleading guilty" (People v Lopez, 6 NY3d 248, 257).

Defendant failed to preserve for our review his challenge to the factual sufficiency of the plea colloquy because he neither moved to withdraw the plea nor moved to vacate the judgment of conviction (see People v Lopez, 71 NY2d 662, 665). In any event, that challenge is encompassed by defendant's valid waiver of the right to appeal (see People v Adzajlic, 74 AD3d 1866).
Entered: February 10, 2011
Patricia L. Morgan
Clerk of the Court