| People v Walker |
| 2017 NY Slip Op 04683 [151 AD3d 1730] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v RonaldWalker, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Ashley R. Lowry of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.),rendered April 7, 2015. The judgment convicted defendant, upon his plea of guilty, of burglary inthe second degree.
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 ofburglary in the second degree (Penal Law § 140.25 [2]). The conviction arises froman incident in which defendant broke into the home of his former girlfriend in violation of astay-away order of protection and allegedly threatened to kill her while armed with a kitchenknife.
Contrary to defendant's contention, the record establishes that he made a knowing,intelligent, and voluntary waiver of his right to appeal (see People v Harris [appeal No.4], 147 AD3d 1375, 1376 [2017]; People v Johnson, 125 AD3d 1419, 1419-1420 [2015], lvdenied 26 NY3d 1089 [2015]; seegenerally People v Sanders, 25 NY3d 337, 341-342 [2015]). The fact that SupremeCourt did not specifically explain that even a legal sentence may be challenged on appeal doesnot impair the scope or validity of the waiver, inasmuch as there is "no requirement that [a]defendant expressly waive every potential claim or defense . . . in order to produce avalid, unrestricted waiver of the right to appeal" (People v Corbin, 121 AD3d 803, 804 [2014]; see People vMuniz, 91 NY2d 570, 574-575 [1998]). Although the presentence report reflects thatdefendant has cognitive limitations, there is no indication in the record that he "was uninformed,confused or incompetent when he waived his right to appeal" (People v DeFazio, 105 AD3d1438, 1439 [2013], lv denied 21 NY3d 1015 [2013] [internal quotation marksomitted]; see People v Scott, 144AD3d 1597, 1598 [2016], lv denied 28 NY3d 1150 [2017]; see also People vAndrews, 274 AD2d 670, 670 [2000], lv denied 95 NY2d 960 [2000]), and we rejecthis contention that the explanations of the waiver provided to him were themselves inconsistentor confusing (see People v Ramos,135 AD3d 1234, 1235 [2016], lv denied 28 NY3d 935 [2016]; People v Reinhardt, 82 AD3d1592, 1593 [2011], lv denied 17 NY3d 799 [2011]; see also People v Yaw, 120 AD3d1447, 1448-1449 [2014], lv denied 24 NY3d 1005 [2014]).
Defendant's valid waiver of his right to appeal with respect to both his conviction andsentence forecloses his challenge to the severity of the sentence (see People v Lopez, 6 NY3d 248,255-256 [2006]; People v Carr, 147AD3d 1506, 1506 [2017]). In addition, given that defendant expressly acknowledged that hiswaiver of the right to appeal would extend to "any orders of protection that are issued as to form,duration, or content," we conclude that the waiver encompasses his contention that the no-contactorder of protection issued in favor of the victim is "unduly stringent" (see People v Fontaine, 144 AD3d1658, 1658-1659 [2016]; cf. Peoplev Lilley, 81 AD3d 1448, 1448 [2011], lv denied 17 NY3d 860 [2011]). In anyevent, although the victim asked the court to issue only a no-offensive-contact order ofprotection, we conclude that the court did not err in issuing a no-contact order (see People v Richardson, 134 AD3d1566, 1567 [2015], lv denied 27 NY3d 1074 [2016]). Finally, defendant contendsthat the court erred at sentencing because it did not "fairly consider the option of issuing ano-offensive-contact order of protection." Even assuming, arguendo, that his contention surviveshis waiver of the right to appeal and does not require preservation (see generally People v Halston, 37AD3d 1144, 1145 [2007], lv denied 8 NY3d 985 [2007]), we conclude that it is notsupported by the record (see generallyPeople v Vasquez, 131 AD3d 1076, 1077 [2015], lv denied 26 NY3d 1151[2016]). Present—Whalen, P.J., Smith, DeJoseph, Troutman and Scudder, JJ.