| People v Baliraj |
| 2012 NY Slip Op 08362 [101 AD3d 1175] |
| December 6, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RichardBaliraj, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the County Court of Schenectady County (Hoye, J.),rendered April 8, 2011, convicting defendant upon his plea of guilty of the crime of gang assaultin the second degree.
Following a shooting in which a person died, defendant and three others were charged in a32-count indictment with various crimes, including murder in the second degree and gang assaultin the first degree. Although Huntley and Wade hearings were conducted,defendant's request for a Dunaway hearing was denied. At the commencement of trial,defendant entered into a plea deal in which he pleaded guilty to gang assault in the second degreein satisfaction of all charges against him, waived his right to appeal and received a sentence of 10years in prison plus postrelease supervision. Defendant appeals contending that his waiver of theright to appeal was not valid and that a Dunaway hearing should have been conducted.
We affirm. Initially, we note that, contrary to the People's contention, a motion to withdrawthe plea or vacate the judgment of conviction is not required to preserve a challenge to thevalidity of a waiver of the right to appeal (see People v Lewis, 48 AD3d 880, 880-881 [2008]). For a waiverof the right to appeal to be effective, defendant must make such waiver knowingly, intelligentlyand voluntarily (see People vBradshaw, 18 NY3d 257, 259 [2011]), which includes the record clearly establishingthat "defendant understood that the right to appeal [*2]is separateand distinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256[2006]). Here, County Court separately explained the right to appeal, that such right (unlike otherrights) was not forfeited by pleading guilty, and inquired whether defendant understood that hewas waiving this particular right as part of the plea bargain. Defendant answered in theaffirmative. Moreover, defendant executed a detailed written waiver of his right to appealacknowledging, among other things, that he had discussed the waiver with counsel and that hewas voluntarily and knowingly waiving the right. The record establishes that the waiver of theright to appeal was valid (see People vDishaw, 81 AD3d 1035, 1036 [2011], lv denied 16 NY3d 858 [2011]; People v Gilmour, 61 AD3d 1122,1123 [2009], lv denied 12 NY3d 925 [2009]). Defendant's contention regarding hismotion for a Dunaway hearing is foreclosed by the valid waiver of the right to appeal (see People v Lewis, 95 AD3d1442, 1443 [2012], lv denied 19 NY3d 998 [2012]; People v White, 75 AD3d 837,838 [2010], lv denied 15 NY3d 925 [2010]).
Mercure, J.P., Rose, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.