| People v Bizardi |
| 2015 NY Slip Op 05835 [130 AD3d 1492] |
| July 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRichard A. Bizardi, Appellant. |
Williams, Heinl, Moody & Buschman, P.C., Auburn (Ryan James Muldoon ofcounsel), for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Jeffrey A. Domachowski of counsel),for respondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.),rendered April 22, 2014. The judgment convicted defendant, upon his plea of guilty, ofcriminal sale of a controlled substance in the third degree.
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 criminal sale of a controlled substance in the third degree (Penal Law§ 220.39 [1]). Contrary to defendant's contention, we conclude that heknowingly, intelligently, and voluntarily waived his right to appeal as a condition of theplea (see generally People vLopez, 6 NY3d 248, 256 [2006]). County Court "engage[d] the defendant in anadequate colloquy to ensure that the waiver of the right to appeal was a knowing andvoluntary choice . . . , and the record establishes that defendant understoodthat the right to appeal is separate and distinct from those rights automatically forfeitedupon a plea of guilty" (People vBurts, 114 AD3d 1272, 1273 [2014], lv denied 22 NY3d 1197 [2014][internal quotation marks omitted]). Contrary to defendant's contention, the court "wasnot required to specify during the colloquy which specific claims survive the waiver ofthe right to appeal" (People vRodriguez, 93 AD3d 1334, 1335 [2012], lv denied 19 NY3d 966[2012]). Defendant's contention that the court erred in denying his request for aWade hearing is encompassed by the valid waiver (see People v Jenkins, 117AD3d 1528, 1529 [2014], lv denied 23 NY3d 1063 [2014]).
Although defendant's contention that his guilty plea was not knowing, voluntary, andintelligent survives his valid waiver of the right to appeal, defendant failed to preservethat contention for our review by moving to withdraw his plea or to vacate the judgmentof conviction (see People vRobinson, 112 AD3d 1349, 1349 [2013], lv denied 23 NY3d 1042[2014]), and this case does not fall within the rare exception to the preservationrequirement (see People v Lopez, 71 NY2d 662, 666 [1988]).Present—Smith, J.P., Peradotto, Sconiers, Valentino and DeJoseph, JJ.