| People v Graham |
| 2016 NY Slip Op 04591 [140 AD3d 1686] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTyrone L. Graham, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.),rendered February 28, 2013. The judgment convicted defendant, upon his plea of guilty,of attempted criminal possession of a weapon in the second 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 attempted criminal possession of a weapon in the second degree (Penal Law§§ 110.00, 265.03 [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 tohim that, " 'by pleading guilty, [he would] give up the right to allege [that] thepolice unlawfully collected evidence or did anything else illegal' was misleading to theextent that it improperly implied that defendant's right to challenge the court'ssuppression ruling on appeal was automatically extinguished upon the entry of his guiltyplea" (People v Braxton,129 AD3d 1674, 1675 [2015], lv denied 26 NY3d 965 [2015]; see People v Weinstock, 129AD3d 1663, 1663 [2015], lv denied 26 NY3d 1012 [2015]). We conclude,however, that the court's "plea colloquy, together with the written waiver of the right toappeal, adequately apprised defendant that the right to appeal is separate and distinctfrom those rights automatically forfeited upon a plea of guilty" (Braxton, 129AD3d at 1675 [internal quotation marks omitted]). Defendant's valid waiver of the rightto appeal encompasses his contention that the court erred in refusing to suppress physicalevidence (see People v Kemp, 94 NY2d 831, 833 [1999]; Weinstock, 129AD3d at 1663). Present—Whalen, P.J., Smith, Lindley, NeMoyer and Scudder,JJ.