| People v Nicometo |
| 2016 NY Slip Op 01975 [137 AD3d 1619] |
| March 18, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Michael A. Nicometo, Also Known as Michael Nicometo,Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero 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 January 21, 2014. The judgment convicted defendant, upon his plea of guilty,of burglary in the third 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 ofburglary in the third degree (Penal Law § 140.20), 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 defendant"understood that the right to appeal is separate and distinct from those rightsautomatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256 [2006]). Contrary todefendant's further contention, it is well settled that a "waiver of the right to appeal [is]not rendered invalid based on the court's failure to require [the] defendant to articulatethe waiver in his [or her] own words" (People v Dozier, 59 AD3d 987, 987 [2009], lv denied12 NY3d 815 [2009]). Defendant's valid waiver of the right to appeal forecloses hischallenge to the severity of the bargained-for sentence (see Lopez, 6 NY3d at255; see also People vVincent, 114 AD3d 1171, 1171 [2014], lv denied 23 NY3d 969; People v Williams, 49 AD3d1280, 1280 [2008]; see generally People v Lococo, 92 NY2d 825, 827[1998]).
Defendant further contends that the court erred in issuing an order of protection infavor of his former wife as a condition of the sentence. Inasmuch as the "order[ ] ofprotection was first disclosed at sentencing after defendant executed a waiver of appealat the plea proceedings, [defendant's contention] survives the appeal waiver" (People v Gardner, 129 AD3d1386, 1387 [2015]; see alsoPeople v DeFazio, 105 AD3d 1438, 1439 [2013], lv denied 21 NY3d1015 [2013]; People vSmith, 83 AD3d 1213, 1214 [2011]). Nevertheless, we conclude that thecontention is without merit (seegenerally People v Victor, 20 AD3d 927, 928 [2005], lv denied 5 NY3d833 [2005], reconsideration denied 5 NY3d 885 [2005]).Present—Whalen, P.J., Smith, Carni, Nemoyer and Curran, JJ.