| People v Morales |
| 2017 NY Slip Op 02251 [148 AD3d 1638] |
| March 24, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v WilfredoMorales, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of counsel), fordefendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.),rendered January 22, 2014. The judgment convicted defendant, upon his plea of guilty, ofattempted assault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofattempted assault in the first degree (Penal Law §§ 110.00, 120.10 [1]),defendant contends that Supreme Court erred in failing to follow the requirements of CPL article730 to determine whether he was competent to stand trial (see CPL 730.30 [1]), and thusreversal is required. We reject that contention. "The record indicates that the court granteddefense counsel's request for a 'forensic [evaluation]' of defendant by ordering only an informalpsychological examination and not by issuing an order of examination pursuant to CPL article730" (People v Castro, 119 AD3d1377, 1378 [2014], lv denied 24 NY3d 1082 [2014]; see People v Johnson,252 AD2d 967, 968 [1998], affd 92 NY2d 976 [1998]). "[T]he decision of the court toorder an informal psychological examination was within its discretion . . . and didnot automatically require the court to issue an order of examination or otherwise comply withCPL article 730" (Castro, 119 AD3d at 1378 [internal quotation marks omitted]; seeJohnson, 252 AD2d at 968).
Defendant further contends that his sentence is unduly harsh and severe and that his waiverof the right to appeal does not preclude his challenge to the severity of his sentence. Contrary todefendant's contention, we conclude that "the record demonstrates that [the waiver] was madeknowingly, intelligently and voluntarily" (People v Lopez, 6 NY3d 248, 256 [2006]), and that "defendantha[d] 'a full appreciation of the consequences' of such waiver" (People v Bradshaw, 18 NY3d 257,264 [2011]). We further conclude that the waiver encompasses defendant's challenge to theseverity of the sentence. First, the waiver occurred following the court's discussion of themaximum sentence defendant faced (see People v Hidalgo, 91 NY2d 733, 737 [1998]).Second, although the court, during its oral colloquy, asked defendant if he understood that he waswaiving his "right to appeal the conviction" (see People v Maracle, 19 NY3d 925, 928 [2012]) and his right tochallenge "any errors or mistakes" without mentioning any challenge to the severity of thesentence (see People v Dilley, 133AD3d 1380, 1381 [2015]), defendant executed and acknowledged on the record a writtenwaiver of the right to appeal, which specifically referenced the fact that he was waiving his rightto appeal the "sentence" except for any challenge to the legality of the sentence. Based on thecombination of a lengthy oral colloquy, a written waiver wherein defendant "expressly waived[his] right to appeal without limitation," and an acknowledgment of that written waiver duringthe oral colloquy, we conclude that the valid waiver of the right to appeal encompassesdefendant's challenge to the severity of the sentence (Hidalgo, 91 NY2d at 737;cf. People v Doblinger, 117AD3d 1484, 1485 [2014]). Present—Peradotto, J.P., Lindley, DeJoseph, NeMoyerand Troutman, JJ.