| People v Oberdorf |
| 2016 NY Slip Op 00799 [136 AD3d 1291] |
| February 5, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Cynthia L. Oberdorf, Appellant. |
Leanne Lapp, Public Defender, Canandaigua, D.J. & J.A. Cirando, Esqs.,Syracuse (Bradley E. Keem of counsel), for defendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel),for respondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.),rendered July 3, 2013. The judgment convicted defendant, upon her plea of guilty, ofcriminal sale of a controlled substance in the second degree and criminal sale of acontrolled substance in the third degree (three counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon her plea ofguilty, of one count of criminal sale of a controlled substance in the second degree (PenalLaw § 220.41 [1]) and three counts of criminal sale of a controlledsubstance in the third degree (§ 220.39 [1]). Contrary to the contention ofdefendant, her waiver of the right to appeal was knowingly, intelligently and voluntarilyentered inasmuch as County Court's lengthy colloquy about the waiver established thatdefendant understood the terms and conditions of the plea agreement, and "[t]he record. . . establish[es] that the defendant understood that the right to appeal isseparate and distinct from those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d248, 256 [2006]). Any alleged deficiencies in the written waiver of the right toappeal, which was executed at the time of sentencing, are of no moment where, as here,there is an otherwise valid oral waiver of the right to appeal (see People v Handly, 122AD3d 1007, 1008 [2014]; People v Irvine, 42 AD3d 949, 949-950 [2007], lvdenied 9 NY3d 962 [2007]).
The further contention of defendant that the plea was not knowingly, intelligentlyand voluntarily entered owing to the manner in which the plea allocution was conductedis, in effect, "a challenge to the factual sufficiency of the plea allocution and thus isencompassed by the valid waiver of the right to appeal" (People v Brown, 66 AD3d1385, 1385 [2009], lv denied 14 NY3d 839 [2010]; see People v Korber, 89 AD3d1543, 1543 [2011], lv denied 19 NY3d 864 [2012]). "Moreover, defendantfailed to preserve that contention for our review inasmuch as [s]he failed to move towithdraw the plea or to vacate the judgment of conviction" (Korber, 89 AD3d at1543; see People v Lewis,114 AD3d 1310, 1311 [2014], lv denied 22 NY3d 1200 [2014]).
Although defendant also contends that the bargained-for sentence is unduly harshand severe, "[t]he valid waiver of the right to appeal encompasses defendant's challengeto the severity of the bargained-for sentence" (People v Smith, 37 AD3d 1141, 1142 [2007], lvdenied 9 NY3d 851 [2007], reconsideration denied 9 NY3d 926 [2007];see generally Lopez, 6 NY3d at 255). We note, however, that both the certificateof conviction and the uniform sentence and commitment form should be amendedbecause they incorrectly reflect that defendant was sentenced as a second felony offenderwhen she was actually sentenced as a second felony drug offender (see People v Labaff, 127 AD3d1471, 1472 [2015], lv denied 26 NY3d 931 [2015]; People v Easley, 124 AD3d1284, 1285 [2015], lv denied 25 NY3d 1200 [2015]).Present—Whalen, P.J., Centra, Peradotto, Carni and Scudder, JJ.