| People v Smith |
| 2016 NY Slip Op 03303 [138 AD3d 1415] |
| April 29, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRyan S. Smith, Appellant. |
Patricia M. McGrath, Lockport, for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), renderedJune 4, 2013. The judgment convicted defendant, upon his plea of guilty, of burglary inthe first degree (five counts), robbery in the first degree (seven counts), kidnapping in thesecond degree (three counts), criminal use of a firearm in the first degree (two counts),assault in the first degree, assault in the second degree (two counts), criminal possessionof a weapon in the second degree, menacing a police officer or peace officer, grandlarceny in the third degree and resisting arrest.
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, inter alia, five counts of burglary in the first degree (Penal Law§ 140.30 [2]-[4]) and seven counts of robbery in the first degree(§ 160.15 [1], [3], [4]). Contrary to defendant's contention, the recordestablishes that he knowingly, voluntarily and intelligently waived the right to appeal (see generally People v Lopez,6 NY3d 248, 256 [2006]). There is no support in the record for defendant'scontention that his waiver of the right to appeal was the result of coercion, "particularlyconsidering [County] [C]ourt's thorough colloquy," the extensive consultations betweendefendant and defense counsel regarding the waiver, and defendant's affirmativestatement that his agreement to the waiver was voluntary (People v Hayes, 71 AD3d1187, 1188 [2010], lv denied 15 NY3d 852 [2010], reconsiderationdenied 15 NY3d 921 [2010], citing People v Holman, 89 NY2d 876, 878[1996]). Here, "[t]here was no effort to conceal error and defendant was fully aware ofwhat the appealable issues were" (Holman, 89 NY2d at 878). In addition,defendant obtained a favorable bargain by waiving his right to appeal as a condition ofhis plea inasmuch as he significantly limited his sentencing exposure (see People v Evans, 59 AD3d216, 216-217 [2009], lv denied 12 NY3d 816 [2009]).
"The valid waiver by defendant of the right to appeal encompasses his contentionthat the court erred in denying his pre-plea recusal motion" (People v Thorn, 298AD2d 900, 901 [2002], lv denied 99 NY2d 540 [2002]). Contrary to defendant'sfurther contention, that waiver also encompasses his challenge to the court's ordercompelling him to provide a buccal swab for DNA analysis (see generally Lopez,6 NY3d at 255; People vRodriguez, 93 AD3d 1334, 1335 [2012], lv denied 19 NY3d 966[2012]) and, in any event, that challenge is forfeited by his plea of guilty (see People v Tehoke, 6 AD3d1173, 1174 [2004]; see generally People v Hansen, 95 NY2d 227, 230-232[2000]). Present—Whalen, P.J., Peradotto, Lindley, NeMoyer and Scudder,JJ.