| People v Mitchell |
| 2012 NY Slip Op 01897 [93 AD3d 1173] |
| March 16, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Anthony A. Mitchell, Appellant. |
—[*1] Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of counsel), forrespondent.
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered July 19,2010. The judgment convicted defendant, upon his plea of guilty, of attempted criminalpossession of a controlled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a plea of guilty, ofattempted criminal possession of a controlled substance in the fifth degree (Penal Law§§ 110.00, 220.06 [5]). Preliminarily, we note that defendant's notice of appealrecites an incorrect date on which judgment was rendered. Defendant's notice of appeal recitesthe correct indictment number, however, and thus we exercise our discretion, in the interest ofjustice, and treat the notice of appeal as valid (see CPL 460.10 [6]).
We reject defendant's contention that the language used by County Court during the pleaallocution concerning his waiver of the right to appeal was vague and did not absolutely prohibitdefendant from contesting the court's suppression rulings on appeal. " '[T]rial courts are notrequired to engage in any particular litany during an allocution in order to obtain a valid guiltyplea in which defendant waives a plethora of rights,' including the right to appeal" (People v Gilbert, 17 AD3d 1164,1164 [2005], lv denied 5 NY3d 762 [2005], quoting People v Moissett, 76 NY2d909, 910-911 [1990]). Here, the record establishes that the court stated that defendant waswaiving his right to appeal, and defendant indicated that he understood that he was waiving hisright to appeal. Defendant's valid waiver of the right to appeal thus encompasses his challengesto the court's suppression rulings (see People v Kemp, 94 NY2d 831, 833 [1999];Gilbert, 17 AD3d at 1164). To the extent that defendant contends that his plea was notknowing, intelligent, and voluntary, that contention in fact is premised on defendant's challengeto the allegedly incorrect suppression rulings. Thus, that contention is in effect also a challenge tothe suppression rulings, which is encompassed by the valid waiver of the right to appeal (seeKemp, 94 NY2d at 833). Present—Scudder, P.J., Centra, Peradotto, Lindley andMartoche, JJ.