| People v Hand |
| 2017 NY Slip Op 00776 [147 AD3d 1326] |
| February 3, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v MichaelHand, Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), fordefendant-appellant.
Valerie G. Gardner, District Attorney, Penn Yan (Lora J. Tryon of counsel), forrespondent.
Appeal from a judgment of the Yates County Court (W. Patrick Falvey, J.), rendered April 1,2014. The judgment convicted defendant, upon his plea of guilty, of attempted rape in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofattempted rape in the first degree (Penal Law §§ 110.00, 130.35 [1]). Contraryto defendant's contention, we conclude that the record establishes that County Court "conductedan adequate colloquy to ensure that the waiver of the right to appeal was a knowing andvoluntary choice" (People v Davis,129 AD3d 1613, 1613 [2015], lv denied 26 NY3d 966 [2015] [internal quotationmarks omitted]), and that "defendant understood that the right to appeal is separate and distinctfrom those rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d 248, 256[2006]). Contrary to defendant's further contentions, his " 'monosyllabic affirmativeresponses to questioning by [the c]ourt do not render his [waiver] unknowing andinvoluntary' " (People vHarris, 94 AD3d 1484, 1485 [2012], lv denied 19 NY3d 961 [2012]), and thecourt "was not required to specify during the colloquy which specific claims survive the waiverof the right to appeal" (People vRodriguez, 93 AD3d 1334, 1335 [2012], lv denied 19 NY3d 966 [2012]; see People v Kosty, 122 AD3d1408, 1408 [2014], lv denied 24 NY3d 1220 [2015]). Defendant's contention that"his plea was not knowing, intelligent and voluntary 'because he did not recite the underlyingfacts of the crime but simply replied to [the c]ourt's questions with monosyllabic responses isactually a challenge to the factual sufficiency of the plea allocution,' which is encompassed by thevalid waiver of the right to appeal" (People v Simcoe, 74 AD3d 1858, 1859 [2010], lv denied 15NY3d 778 [2010]). Finally, defendant's valid waiver of the right to appeal encompasses hischallenge to the severity of the sentence (see Davis, 129 AD3d at 1615; see generallyLopez, 6 NY3d at 255-256). Present—Whalen, P.J., Smith, Peradotto, DeJoseph andCurran, JJ.