| People v Braxton |
| 2015 NY Slip Op 05366 [129 AD3d 1674] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vLester A. Braxton, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.),rendered June 7, 2012. The judgment convicted defendant, upon his plea of guilty, ofattempted criminal possession of a weapon in the second degree and driving whileintoxicated.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of attempted criminal possession of a weapon in the second degree (Penal Law§§ 110.00, 265.03 [3]) and driving while intoxicated (Vehicle andTraffic Law § 1192 [3]). Contrary to defendant's contention, the recordestablishes that he knowingly, voluntarily and intelligently waived his right to appeal (see generally People v Lopez,6 NY3d 248, 256 [2006]). We agree with defendant that County Court's statement todefendant that, "by pleading guilty, [he would] give up the right to allege the policeunlawfully collected evidence or did anything else illegal" was misleading to the extentthat it improperly implied that defendant's right to challenge the court's suppressionruling on appeal was automatically extinguished upon the entry of his guilty plea (see generally People v Moyett,7 NY3d 892, 892-893 [2006]; People v Williams, 49 AD3d 1281, 1282 [2008], lvdenied 10 NY3d 940 [2008]). Nevertheless, we conclude that " 'CountyCourt's plea colloquy, together with the written waiver of the right to appeal, adequatelyapprised defendant that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty' " (People v Arney, 120 AD3d949, 949 [2014]; see Peoplev Ramos, 7 NY3d 737, 738 [2006]; Williams, 49 AD3d at 1282).Defendant's valid waiver of the right to appeal encompasses his challenge to the court'ssuppression ruling (see People v Kemp, 94 NY2d 831, 833 [1999]), and hischallenge to the severity of the bargained-for sentence (see Lopez, 6 NY3d at255). Present—Smith, J.P., Peradotto, Carni, Valentino and Whalen, JJ.