| People v Johnson |
| 2016 NY Slip Op 04826 [140 AD3d 1738] |
| June 17, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMichael D. Johnson, Appellant. |
Anthony J. Lana, Buffalo, for defendant-appellant.
Niagara County District Attorney's Office, Lockport (Thomas H. Brandt of counsel),for respondent.
Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), renderedJuly 15, 2013. The judgment convicted defendant, upon his plea of guilty, of rape in thefirst 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,of rape in the first degree (Penal Law § 130.35 [4]), defendant contends thathis sentence is unduly harsh and severe. We conclude that defendant knowingly,voluntarily, and intelligently waived the right to appeal (see generally People v Lopez,6 NY3d 248, 256 [2006]), and that valid waiver encompasses his challenge to theseverity of the sentence (see generally People v Lococo, 92 NY2d 825, 827[1998]; People v Hidalgo, 91 NY2d 733, 737 [1998]). During the plea colloquy,County Court made clear to defendant that the right to appeal was separate and distinctfrom the other rights that are automatically forfeited upon a plea of guilty (see People v Rausch, 126AD3d 1535, 1535 [2015], lv denied 26 NY3d 1149 [2016]; cf. People vVanHooser [appeal No. 2], 126 AD3d 1531, 1532 [2015]), and the court furtherexplained that the waiver precluded defendant from challenging either the conviction orthe severity of his sentence (cf.People v Maracle, 19 NY3d 925, 928 [2012]). In any event, based on our reviewof the record, we perceive no basis upon which to modify the sentence as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [b]).Present—Peradotto, J.P., Carni, Lindley, Curran and Troutman, JJ.