| People v Colon |
| 2014 NY Slip Op 07840 [122 AD3d 1309] |
| November 14, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDavid Colon, Appellant. |
Frank J. Nebush, Jr., Public Defender, Utica (Patrick J. Marthage of counsel), fordefendant-appellant.
Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.),rendered September 13, 2011. The judgment convicted defendant, upon his plea ofguilty, of criminal contempt in the first 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 ofcriminal contempt in the first degree (Penal Law § 215.51 [b] [iii]),defendant challenges the validity of his waiver of the right to appeal. We conclude that"County Court did not improperly conflate the waiver of the right to appeal with thoserights automatically forfeited by a guilty plea" (People v Bentley, 63 AD3d 1624, 1625 [2009], lvdenied 13 NY3d 742 [2009]; see People v Bradshaw, 18 NY3d 257, 264 [2011]; People v Lopez, 6 NY3d248, 256 [2006]), and that the record establishes that the court engaged defendant"in an adequate colloquy to ensure that the waiver of the right to appeal was a knowingand voluntary choice" (People vBurt, 101 AD3d 1729, 1730 [2012], lv denied 20 NY3d 1060 [2013][internal quotation marks omitted]). Defendant's valid waiver encompasses his challengeto the severity of the sentence (see generally People v Lococo, 92 NY2d 825, 827[1998]).
Although defendant's contentions that his plea was coerced and that he is innocentsurvive the valid waiver of the right to appeal (see People v Merritt, 115 AD3d 1250, 1251 [2014]; People v Lewandowski, 82AD3d 1602, 1602 [2011]), we conclude that those contentions are without merit."The court was presented with a credibility determination when defendant moved towithdraw his plea and advanced his belated claims of innocence and coercion, and it didnot abuse its discretion in discrediting those claims" (People v Sparcino, 78 AD3d 1508, 1509 [2010], lvdenied 16 NY3d 746 [2011]). Indeed, we conclude that "defendant's assertions ofinnocence and coercion were conclusory and belied by defendant's statements during theplea colloquy" (People vWright, 66 AD3d 1334, 1334 [2009], lv denied 13 NY3d 912 [2009]; see People v Allen, 99 AD3d1252, 1252 [2012]). Present—Scudder, P.J., Fahey, Carni, Lindley andValentino, JJ.