| People v Colucci |
| 2012 NY Slip Op 02977 [94 AD3d 1418] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Nicole L.Colucci, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered April14, 2011. The judgment convicted defendant, upon her plea of guilty, of manslaughter in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty ofmanslaughter in the second degree (Penal Law § 125.15 [1]). We reject defendant'scontention that her waiver of the right to appeal was invalid (see generally People v Lopez, 6 NY3d 248, 256 [2006]). The pleacolloquy and the written waiver of the right to appeal signed by defendant demonstrate that sheknowingly, intelligently and voluntarily waived the right to appeal (see People v James, 71 AD3d1465, 1465 [2010]), and the record establishes that " 'defendant understood that the right toappeal is separate and distinct from those rights automatically forfeited upon a plea of guilty' "(People v Dunham, 83 AD3d1423, 1424 [2011], lv denied 17 NY3d 794 [2011], quoting Lopez, 6 NY3dat 256).
Defendant's further contention that County Court erred in relying upon improper statementsby the prosecutor during sentencing does not survive defendant's valid waiver of the right toappeal "inasmuch as defendant is essentially challenging the procedure pursuant to which [she]was sentenced . . . , rather than the legality of the sentence . . .'Because the power of the court is not implicated by [that] challenge[ ], appellate review of [thatchallenge] is foreclosed by the bargained-for waiver of [the right to] appeal' " (People v Adams, 64 AD3d 1186,1187 [2009], lv denied 13 NY3d 834 [2009]).
Finally, defendant's challenge to the severity of the sentence is encompassed by her validwaiver of the right to appeal (see Lopez, 6 NY3d at 255-256; People v Hidalgo,91 NY2d 733, 737 [1998]). Present—Smith, J.P., Lindley, Sconiers and Martoche, JJ.