| People v Colucci |
| 2012 NY Slip Op 02978 [94 AD3d 1419] |
| April 20, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RandyColucci, Sr., Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered April14, 2011. The judgment convicted defendant, upon his 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 him upon his plea of guilty ofmanslaughter in the second degree (Penal Law § 125.15 [1]). We conclude that defendant'scontentions regarding his waiver of the right to challenge the judgment of conviction by motionpursuant to CPL articles 330 and 440 or by writ of coram nobis are premature (see People v Hill, 93 AD3d 1237,1237 [2012]). It is settled that the courts of this State may decide only controversies that arepresently justiciable. To be justiciable, a controversy must "involve present, rather thanhypothetical, contingent or remote, prejudice" to a party (American Ins. Assn. v Chu, 64NY2d 379, 383 [1985], appeal dismissed and cert denied 474 US 803 [1985]). Here,defendant's contentions with respect to such postjudgment relief "seek[ ] merely an advisoryopinion" (Hill, 93 AD3d at 1237).
We reject defendant's further contention that his waiver of the right to appeal was invalid (see generally People v Lopez, 6 NY3d248, 256 [2006]). Defendant signed a written waiver of the right to appeal, and the pleacolloquy demonstrates that he knowingly, intelligently and voluntarily waived the right to appeal(see People v James, 71 AD3d1465, 1465 [2010]). Further, the record establishes that he " '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). Present—Smith, J.P., Lindley, Sconiers and Martoche, JJ.