| People v Johnson |
| 2014 NY Slip Op 07860 [122 AD3d 1324] |
| November 14, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRashod Johnson, Appellant. |
Frank J. Nebush, Jr., Public Defender, Utica (David A. Cooke 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 July 19, 2010. The judgment convicted defendant, upon his plea of guilty, ofrape 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 ofrape in the first degree (Penal Law § 130.35 [1]), defendant contends thathis waiver of the right to appeal is invalid because it was not knowingly, voluntarily, andintelligently entered. We reject that contention. The record establishes that County Courtengaged defendant " 'in an adequate colloquy to ensure that the waiver of theright to appeal was a knowing and voluntary choice' " (People v Ripley, 94 AD3d1554, 1554 [2012], lv denied 19 NY3d 976 [2012]), and "that the defendantunderstood that the right to appeal is separate and distinct from those rights automaticallyforfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Korber, 89 AD3d1543, 1543 [2011], lv denied 19 NY3d 864 [2012]). We conclude thatdefendant's "responses during the plea colloquy and his execution of a written waiver ofthe right to appeal establish that he intelligently, knowingly, and voluntarily waived hisright to appeal" (People vRumsey, 105 AD3d 1448, 1449 [2013], lv denied 21 NY3d 1019[2013]; see generally Lopez, 6 NY3d at 256), and that valid waiver foreclosesany challenge by defendant to the severity of his bargained-for sentence (seeLopez, 6 NY3d at 256).
We reject the further contention of defendant that his plea was not knowingly,intelligently, and voluntarily entered and thus that the court erred in denying his motionto withdraw his plea. "Permission to withdraw a guilty plea rests solely within the court'sdiscretion . . . , and refusal to permit withdrawal does not constitute anabuse of discretion unless there is some evidence of innocence, fraud, or mistake ininducing the plea" (People v Robertson, 255 AD2d 968, 968 [1998], lvdenied 92 NY2d 1053 [1999]; see People v Zimmerman, 100 AD3d 1360, 1361 [2012],lv denied 20 NY3d 1015 [2013]). We perceive no abuse of discretion here.Defendant's claims that he did not "understand this legal proceeding stuff" and that he"didn't really want to take this plea" are belied by his statements during the pleaproceeding (see People vLeach, 119 AD3d 1429, 1429 [2014]; People v Lewicki, 118 AD3d 1328, 1329 [2014], lvdenied 23 NY3d 1064 [2014]). The record establishes that "defendant knowinglyand intelligently, with neither 'confusion' nor 'coercion' present . . . , andwith a full opportunity to assess the advantages and disadvantages of a plea versus a trial. . . , made his election" (People v Pearson, 55 AD2d 685, 687[1976]). Present—Smith, J.P., Peradotto, Valentino, Whalen and DeJoseph,JJ.