| People v Kesick |
| 2014 NY Slip Op 05090 [119 AD3d 1371] |
| July 3, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vRichard Kesick, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered December 12, 2012. The judgment convicted defendant, upon his plea of guilty,of grand larceny in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofgrand larceny in the third degree (Penal Law § 155.35 [1]), defendantcontends that his waiver of the right to appeal is invalid. We reject that contention.County Court "engage[d] the defendant in an adequate colloquy to ensure that the waiverof the right to appeal was a knowing and voluntary choice . . . , and therecord establishes that defendant understood that the right to appeal is separate anddistinct from those rights automatically forfeited upon a plea of guilty" (People v Burts, 114 AD3d1272, 1273 [2014], lv denied 22 NY3d 1197 [2014] [internal quotationmarks omitted]; see People vLopez, 6 NY3d 248, 256 [2006]; People v Hicks, 89 AD3d 1480, 1480-1481 [2011], lvdenied 18 NY3d 924 [2012]). We thus conclude that "[t]he plea colloquy and thewritten waiver of the right to appeal signed [and acknowledged in court] by defendantdemonstrate that [he] knowingly, intelligently and voluntarily waived the right to appeal"(People v Colucci, 94 AD3d1418, 1419 [2012], lv denied 19 NY3d 959 [2012]; see People v Pulley, 107 AD3d1560, 1561 [2013], lv denied 21 NY3d 1076 [2013]; People v Rumsey, 105 AD3d1448, 1449 [2013], lv denied 21 NY3d 1019 [2013]).
Contrary to defendant's further contention, the valid waiver of the right to appealencompasses his challenge to the severity of the sentence, including the imposition andamount of restitution, the terms of which were made a part of the plea agreement (seeLopez, 6 NY3d at 255; People v Graves, 96 AD3d 1466, 1466 [2012], lvdenied 19 NY3d 1026 [2012]; People v Butler, 81 AD3d 1465, 1465 [2011], lvdenied 17 NY3d 805 [2011]). Present—Scudder, P.J., Fahey, Peradotto,Lindley and Sconiers, JJ.