| People v Fallen |
| 2013 NY Slip Op 03125 [106 AD3d 1118] |
| May 2, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v CoreyFallen, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered November 19, 2010, convicting defendant upon his plea of guiltyof the crime of murder in the second degree.
As the result of an incident in which defendant pursued and fatally stabbed thevictim, he was indicted on charges of murder in the second degree and criminalpossession of a weapon in the third degree. Defendant pleaded guilty to murder in thesecond degree in satisfaction of the indictment, and waived his right to appeal. Due to hisunwillingness to admit that he intended to kill the victim, he was permitted to enter anAlford plea. County Court imposed the agreed-upon prison sentence of 17 yearsto life, and defendant now appeals.
We affirm. Contrary to defendant's initial contention, he validly waived his right toappeal despite the fact that he was erroneously advised that the waiver would encompassa challenge to the voluntariness of his guilty plea. Defendant executed a detailed writtenwaiver specifying that he was forfeiting the right to raise issues on appeal to the fullextent that he could legally do so. The written waiver and plea colloquy further establishthat defendant's appellate rights had been explained to him by counsel, that any questionshe had regarding the waiver of those rights had been addressed and that he voluntarilyexecuted the waiver. When viewed in that context, any reference to defendant's waiver ofhis right to challenge the voluntariness of the plea merely emphasized "that the waiverwas intended to be all encompassing," and we find that [*2]defendant knowingly, intelligently and voluntarily waivedhis right to appeal from the judgment of conviction and sentence (People v Allen,82 NY2d 761, 763 [1993]; seePeople v Ramos, 7 NY3d 737, 738 [2006]; People v Glynn, 73 AD3d 1290, 1290-1291 [2010]).
Defendant next asserts that County Court erred in accepting his Alford plea.Although that argument survives his appeal waiver to the extent that it implicates thevoluntariness of his plea (seePeople v Ebert, 15 AD3d 781, 782 [2005]), it is unpreserved given the absenceof record evidence that he moved to withdraw the plea or to vacate the judgment ofconviction (see People vTure, 94 AD3d 1163, 1164 [2012], lv denied 19 NY3d 968 [2012]; People v Rivera, 48 AD3d1092, 1093 [2008], lv denied 10 NY3d 869 [2008]). In any event, the recordestablishes "that the Alford plea represented an intelligent and voluntary choice[by] defendant given the alternatives and that the information considered by CountyCourt" provided an ample basis from which to conclude that defendant intended to causethe victim's death (People v Ebert, 15 AD3d at 782; see People v Ture,94 AD3d at 1164).
Defendant's remaining argument, that the sentence imposed was harsh and excessive,is precluded by his valid appeal waiver (see People v Cullen, 101 AD3d 1391, 1391 [2012]).
Lahtinen, J.P., Spain and Garry, JJ., concur. Ordered that the judgment is affirmed.