| People v Smith |
| 2014 NY Slip Op 08187 [122 AD3d 1420] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vFrancis S. Smith, Also Known as Francis Smith, Appellant. (Appeal No.1.) |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered May 2, 2013. The judgment convicted defendant, upon his plea of guilty, ofattempted burglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1 and appeal No. 2, defendant appeals from separatejudgments convicting him upon his pleas of guilty of attempted burglary in the seconddegree (Penal Law §§ 110.00, 140.25 [2]). Both pleas were enteredduring one plea proceeding, during which defendant waived his right to appeal. Wereject defendant's challenge in each appeal to the validity of the waiver of the right toappeal. "The written waiver of the right to appeal, together with defendant's responsesduring the plea proceeding, establish that the waiver was voluntarily, knowingly, andintelligently entered" (People vGriner, 50 AD3d 1557, 1558 [2008], lv denied 11 NY3d 737 [2008]; see People v Ramos, 7 NY3d737, 738 [2006]). The valid waiver of the right to appeal encompasses defendant'schallenge in each appeal to the severity of the sentence, including the period ofpostrelease supervision (seePeople v Raynor, 107 AD3d 1567, 1568 [2013], lv denied 22 NY3d1090 [2014]; People vMcMullen, 94 AD3d 1434, 1434-1435 [2012], lv denied 19 NY3d 964[2012]; People vLaskowski, 46 AD3d 1383, 1384 [2007]). Although defendant's challenge ineach appeal to the validity of the orders of protection issued by County Court surviveshis waiver of the right to appeal (see People v Smith, 83 AD3d 1213, 1214 [2011]; People v Victor, 20 AD3d927, 928 [2005], lv denied 5 NY3d 833 [2005], reconsiderationdenied 5 NY3d 885 [2005]), he failed to preserve those challenges for our reviewinasmuch as he did not object to the orders of protection either during the pleaproceeding or at sentencing (seePeople v Russell, 120 AD3d 1594, 1594-1595 [2014]; Smith, 83 AD3dat 1213-1214). Indeed, defense counsel specifically advised the court that defendant hadno objection to entry of the orders at issue. We therefore decline to exercise our power toreview defendant's challenges as a matter of discretion in the interest of justice(see CPL 470.15 [3] [c]). Present—Scudder, P.J., Peradotto, Lindley,Sconiers and Valentino, JJ.