| People v Dunham |
| 2011 NY Slip Op 02574 [83 AD3d 1423] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robert R.Dunham, Appellant. |
—[*1] Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Spencer J. Ludington, A.J.), renderedJuly 15, 2009. The judgment convicted defendant, upon his plea of guilty, of attempted forgery inthe second degree and grand larceny in the fourth 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 attempted forgery in the second degree (Penal Law §§ 110.00, 170.10 [1]) andgrand larceny in the fourth degree (§ 155.30 [8]). We reject defendant's contention that hiswaiver of the right to appeal was not knowing and voluntary. Although "a trial court need notengage in any particular litany when apprising a defendant pleading guilty of the individual rightsabandoned, it must make certain that a defendant's understanding of the terms and conditions of aplea agreement is evident on the face of the record" (People v Lopez, 6 NY3d 248, 256 [2006]; see People vMcDonald, 270 AD2d 955 [2000], lv denied 95 NY2d 800 [2000]). "The recordmust establish that the defendant understood that the right to appeal is separate and distinct fromthose rights automatically forfeited upon a plea of guilty" (Lopez, 6 NY3d at 256). Here,the record establishes that defendant indicated that he had spoken with defense counsel andunderstood that he was waiving his right to appeal as a condition of the plea. Further, defendant'smonosyllabic affirmative responses to questioning by County Court do not render his pleaunknowing and involuntary (see Peoplev VanDeViver, 56 AD3d 1118 [2008], lv denied 11 NY3d 931 [2009],reconsideration denied 12 NY3d 788 [2009]), and the fact that defendant was notinformed that he could challenge County Court's suppression ruling on appeal did not render theplea involuntary (see generally People v Kemp, 94 NY2d 831 [1999]). In any event,defendant's challenge to the court's suppression ruling is encompassed by his waiver of the rightto appeal (see id. at 833). Additionally, that challenge is without merit (see People vSteward, 88 NY2d 496, 501-502 [1996], rearg denied 88 NY2d 1018 [1996]; People v Scaccia, 6 AD3d 1105,1105-1106 [2004], lv denied 3 NY3d 681 [2004]). Although defendant's contention thathis plea was involuntary survives his waiver of the right to appeal, defendant failed to preservethat contention by moving to withdraw the plea or set aside the conviction (see People v Busch, 60 AD3d1393 [2009], lv denied 12 NY3d 913 [2009]), and we decline to exercise our powerto review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Finally, although defendant's contention that the court failed to apprehend the extent of itssentencing discretion survives his waiver of the right to appeal and does not require preservation(see People [*2]v Schafer, 19 AD3d 1133 [2005]), that contention iswithout merit. The sentence imposed was in accordance with the plea agreement, and there is nosupport for defendant's contention in the record before us. Present—Centra, J.P.,Peradotto, Lindley, Sconiers and Martoche, JJ.