| People v Brand |
| 2013 NY Slip Op 08697 [112 AD3d 1320] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DaleW. Brand, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered December 21, 2011. The judgment convicted defendant, upon his plea of guilty,of assault in the second degree and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofassault in the second degree (Penal Law § 120.05 [2]) and criminal possession of aweapon in the third degree (§ 265.02 [1]), defendant contends that his waiver ofthe right to appeal was invalid. We reject that contention. The plea colloquy conductedby County Court adequately apprised defendant that "the right to appeal is separate anddistinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d248, 256 [2006]; seePeople v Graham, 77 AD3d 1439, 1439 [2010], lv denied 15 NY3d 920[2010]). Contrary to defendant's contention, his " 'waiver [of the right to appeal] is notinvalid on the ground that the court did not specifically inform [him] that his generalwaiver of the right to appeal encompassed the court's suppression rulings' "(Graham, 77 AD3d at 1439). Moreover, defendant's history of mental illness didnot invalidate the waiver of the right to appeal inasmuch as there was no showing that "'defendant was uninformed, confused or incompetent when he' waived his right toappeal" (People v DeFazio,105 AD3d 1438, 1439 [2013], lv denied 21 NY3d 1015 [2013]). The validwaiver by defendant of the right to appeal encompasses his challenge to the suppressionrulings (see People v Kemp, 94 NY2d 831, 833 [1999]), and his challenge to theseverity of the sentence (see Lopez, 6 NY3d at 255-256; see generally Peoplev Hidalgo, 91 NY2d 733, 737 [1998]). Present—Scudder, P.J., Centra,Lindley, Sconiers and Valentino, JJ.