| People v Brown |
| 2017 NY Slip Op 05370 [151 AD3d 1951] |
| June 30, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v ErikaBrown, Appellant. |
Kathryn Friedman, Buffalo, for defendant-appellant.
John J. Flynn, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Kenneth F. Case, J.), rendered June 15,2016. The judgment convicted defendant, upon her plea of guilty, of criminal sale of a controlledsubstance in the third degree (two counts) and criminal possession of a controlled substance inthe third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her upon her plea of guilty oftwo counts of criminal sale of a controlled substance in the third degree (Penal Law§ 220.39 [1]) and one count of criminal possession of a controlled substance in thethird degree (§ 220.16 [1]). At the outset, we conclude that defendant knowingly,voluntarily and intelligently waived her right to appeal, and that waiver encompasses herchallenge to the severity of the sentence (see People v Lopez, 6 NY3d 248, 255-256 [2006]). The furthercontention of defendant that the sentence is illegal, however, survives her waiver of the right toappeal (see People v Seaberg, 74 NY2d 1, 9 [1989]; People v Bussom, 125 AD3d 1331, 1331 [2015]). Nevertheless,contrary to defendant's contention, we conclude that County Court imposed a legal sentence.
To the extent that defendant contends that the plea was not knowing, voluntary andintelligent because the court failed to conduct a sufficient inquiry to determine whether sheunderstood the consequences of the plea, that contention also survives her valid waiver of theright to appeal (see People v Green,122 AD3d 1342, 1343 [2014]; People v Povoski, 78 AD3d 1533, 1533 [2010], lv denied16 NY3d 799 [2011]). Defendant's contention, however, is not preserved for our reviewbecause she did not move to withdraw the plea or to vacate the judgment of conviction on thatground (see People v Hough, 148AD3d 1671, 1671 [2017]; People vBrinson, 130 AD3d 1493, 1493 [2015], lv denied 26 NY3d 965 [2015]). Weconclude in any event that defendant's contention is "belied by [her] statements during the pleacolloquy" (People v Rickard, 262 AD2d 1073, 1073 [1999], lv denied 94 NY2d828 [1999]; see People v Hampton,142 AD3d 1305, 1306-1307 [2016], lv denied 28 NY3d 1124 [2016]; People v Caldwell, 78 AD3d 1562,1563 [2010], lv denied 16 NY3d 796 [2011]). The record reveals that an interpreter waspresent throughout the plea proceeding, and defendant "acknowledged, through the interpreter,that [she] understood the terms of the plea bargain and that [she] willingly accepted them"(People v Mercedes, 171 AD2d 1044, 1044 [1991], lv denied 77 NY2d 998[1991]; see People v Martes, 154 AD2d 946, 946 [1989], lv denied 75 NY2d 870[1990]; People v Quezada, 145 AD2d 950, 951 [1988]). Present—Whalen, P.J.,Carni, Lindley, Curran and Scudder, JJ.