| People v Finch |
| 2012 NY Slip Op 04585 [96 AD3d 1485] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BenjaminFinch, Appellant. |
—[*1] Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of counsel), forrespondent.
Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), renderedSeptember 20, 2010. The judgment convicted defendant, upon his plea of guilty, of arson in thethird 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 ofarson in the third degree (Penal Law § 150.10 [1]). We reject defendant's contention thatCounty Court made an insufficient inquiry regarding his waiver of the right to appeal and thusthat the waiver is invalid. "The court need not engage in any particular litany regarding a waiverof the right to appeal, so long as the court 'make[s] certain that a defendant's understanding of theterms and conditions of a plea agreement is evident on the face of the record' " (People v Miller, 87 AD3d 1303,1303 [2011], lv denied 18 NY3d 926 [2012], quoting People v Lopez, 6 NY3d 248, 256 [2006]). Here, the recordestablishes that defendant's waiver of the right to appeal was knowing, intelligent, and voluntary(see Lopez, 6 NY3d at 256; Miller, 87 AD3d at 1303).
Defendant failed to preserve for our review his contention that his plea was not voluntarilyentered "because . . . he failed to move to withdraw the plea or to vacate thejudgment of conviction" (People vConnolly, 70 AD3d 1510, 1511 [2010], lv denied 14 NY3d 886 [2010]). In anyevent, that contention lacks merit. The record of the plea colloquy establishes that defendantstated that he understood the nature of the rights that he was relinquishing by pleading guilty, thathe had not been coerced into entering the plea, and that he was not promised anything inexchange for his guilty plea. Indeed, he expressly stated that he was entering the plea voluntarilyafter having sufficient time to consult with his attorney. "[T]he record [thus] establishes thatdefendant understood the nature and consequences of his actions" (People v Watkins, 77 AD3d 1403,1403-1404 [2010], lv denied 15 NY3d 956 [2010]). Defendant's challenge to the validityof his waiver of his Miranda rights is encompassed by his waiver of the right to appeal(see People v Kemp, 94 NY2d 831, 833 [1999]; People v Mitchell, 93 AD3d 1173, 1174 [2012]).[*2]
Finally, we agree with defendant that his challenge to thejurisdictional requirements of the waiver of indictment and the superior court information neednot be preserved for our review (see People v Boston, 75 NY2d 585, 589 n [1990]; People v Waid, 26 AD3d 734,734-735 [2006], lv denied 6 NY3d 839 [2006]), and that his challenge is not precludedby his valid waiver of the right to appeal (see Waid, 26 AD3d at 734-735; People vVerrone, 266 AD2d 16, 18 [1999]). Nevertheless, we conclude that defendant's contentionlacks merit. Present—Smith, J.P., Fahey, Carni, Sconiers and Martoche, JJ.