| People v Krouth |
| 2014 NY Slip Op 02196 [115 AD3d 1354] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vGerald R. Krouth, Appellant. |
—[*1] Gerald R. Krouth, defendant-appellant pro se. Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered February 19, 2010. The judgment convicted defendant, upon his plea of guilty,of sexual abuse in the first 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 ofsexual abuse in the first degree (Penal Law § 130.65 [3]), defendant contends thathis waiver of the right to appeal is unenforceable and that Supreme Court erred indenying his motion to suppress identification testimony from the child victim. Weconclude that the waiver of the right to appeal is enforceable and that it thereforeprecludes defendant from challenging the court's suppression ruling. "A waiver of theright to appeal is effective only so long as the record demonstrates that it was madeknowingly, intelligently and voluntarily" (People v Lopez, 6 NY3d 248, 256 [2006]). Here, the court"engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right toappeal was a knowing and voluntary choice" (People v James, 71 AD3d 1465, 1465 [2010] [internalquotation marks omitted]; cf.People v Adger, 83 AD3d 1590, 1591 [2011], lv denied 17 NY3d 857[2011]), and informed him that the waiver was a condition of the plea agreement (cf. People v Williams, 49AD3d 1281, 1282 [2008], lv denied 10 NY3d 940 [2008]). The record alsoestablishes that defendant "indicated that he had spoken with defense counsel andunderstood that he was waiving his right to appeal as a condition of the plea" (People v Dunham, 83 AD3d1423, 1424 [2011], lv denied 17 NY3d 794 [2011]). Finally, the court madeclear to defendant that the right to appeal was separate and distinct from the rightsautomatically forfeited upon plea (see Lopez, 6 NY3d at 256; see also People v Bradshaw,18 NY3d 257, 264 [2011]).
We note in any event that the court properly denied defendant's suppression motionpursuant to People v Gee (286 AD2d 62, 72-73 [2001], affd 99 NY2d158 [2002], rearg denied 99 NY2d 652 [2003]). Present—Scudder, P.J.,Peradotto, Carni, Lindley and Valentino, JJ.