| People v Gast |
| 2014 NY Slip Op 01062 [114 AD3d 1270] |
| February 14, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Ronald Gast, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered March 28, 2012. The judgment convicted defendant, upon his plea ofguilty, of burglary in the second 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 ofguilty of burglary in the second degree (Penal Law § 140.25 [2]). Contrary todefendant's contention, it is well established that "a 'waiver of the right to appeal [is] notrendered invalid based on [a] court's failure to require [the] defendant to articulate thewaiver in his [or her] own words' " (People v Ripley, 94 AD3d 1554, 1554 [2012], lvdenied 19 NY3d 976 [2012]; see People v Thompson, 70 AD3d 1319, 1319-1320[2010], lv denied 14 NY3d 845 [2010], reconsideration denied 15 NY3d810 [2010]). "[W]e conclude that [defendant's] responses during the plea colloquy andhis execution of a written waiver of the right to appeal establish that he intelligently,knowingly, and voluntarily waived his right to appeal" (People v Rumsey, 105 AD3d1448, 1449 [2013], lv denied 21 NY3d 1019 [2013]; see generally People v Lopez,6 NY3d 248, 256 [2006]), and that valid waiver forecloses any challenge bydefendant to the severity of the sentence (see Lopez, 6 NY3d at 255; seegenerally People v Lococo, 92 NY2d 825, 827 [1998]; People v Hidalgo, 91NY2d 733, 737 [1998]).
Defendant contends that his plea should be vacated because it was coerced bySupreme Court's repeated emphasis on what the potential sentence could be after a trial."Although defendant's contention that the plea was not knowingly, voluntarily andintelligently entered survives the valid waiver of the right to appeal" (People v Garner, 111 AD3d1421, 1421 [2013]), he "failed to preserve for our review his contention that hisguilty plea was coerced by [the court] inasmuch as he failed to raise that issue in hismotion to withdraw his plea . . . and failed to move to vacate the judgmentof conviction on that ground" (People v Robinson, 64 AD3d 1248, 1248 [2009], lvdenied 13 NY3d 862 [2009]; see People v Carlisle, 50 AD3d 1451, 1452 [2008], lvdenied 10 NY3d 957 [2008]). In any event, defendant's contention lacks merit."Although it is well settled that '[a] defendant may not be induced to plead guilty by thethreat of a heavier sentence if he [or she] decides to proceed to trial' . . . ,the statements of the court at issue . . . 'amount to a description of the rangeof the potential sentences' rather than impermissible coercion" (People v Boyde, 71 AD3d1442, 1443 [2010], lv denied 15 NY3d 747 [2010]). " 'The fact thatdefendant may have pleaded guilty to avoid receiving a harsher sentence does not renderhis plea coerced' " (id.). Contrary to defendant's further contention, the court didnot err in denying his motion to withdraw his guilty plea on the ground that defensecounsel coerced him into pleading guilty. " 'The unsupported allegations of defendantthat [defense counsel] pressured him into accepting the plea bargain do not warrantvacatur of his plea' " (People vJames, 71 AD3d 1465, 1465 [2010]). To the extent that defendant contends thatthe plea was not knowing, voluntary and intelligent because he was on medication at thetime of the plea colloquy, and thus was unable to understand the nature of theproceedings, that contention " 'is belied by the record of the plea proceeding'. . . , which establishes that [*2]defendantunderstood the nature of the proceedings" (People v Watkins, 107 AD3d 1416, 1417 [2013], lvdenied 22 NY3d 959 [2013]). Present—Smith, J.P., Fahey, Carni, Valentinoand Whalen, JJ.