| People v Smith |
| 2018 NY Slip Op 06370 [164 AD3d 1621] |
| September 28, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Raymond Smith, Appellant. |
David J. Pajak, Alden, for defendant-appellant.
John J. Flynn, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), rendered March9, 2017. The judgment convicted defendant, upon his plea of guilty, of murder in the seconddegree.
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 ofmurder in the second degree (Penal Law § 125.25 [1]). Contrary to defendant'scontention, we conclude that his waiver of the right to appeal during the plea colloquy was valid(see generally People v Sanders, 25NY3d 337, 340-341 [2015]). The fact that the appeal waiver was not reduced to writing is ofno moment where, as here, the oral waiver was adequate (see People v Handly, 122 AD3d 1007, 1008 [3d Dept 2014]; see also People v Renert, 143 AD3d1016, 1016-1017 [3d Dept 2016], lv denied 28 NY3d 1126 [2016]). Further, while itmay have been the better practice for County Court to ask defendant whether he discussed theappeal waiver with defense counsel (seePeople v Lester, 141 AD3d 951, 953 [3d Dept 2016], lv denied 28 NY3d 1185[2017]; People v Belile, 137 AD3d1460, 1461 [3d Dept 2016]), the court was not required to engage in any particular litanyand, based on "all of the relevant factors surrounding the waiver," we conclude that the recordestablished defendant's knowing, voluntary and intelligent waiver of the right to appeal(Sanders, 25 NY3d at 341).
The valid waiver of the right to appeal encompasses defendant's challenge to the factualsufficiency of the plea allocution (seePeople v Oswold, 151 AD3d 1756, 1756 [4th Dept 2017], lv denied 29 NY3d1131 [2017]; People v McCrea, 140AD3d 1655, 1655 [4th Dept 2016], lv denied 28 NY3d 933 [2016]), and hiscontention that the sentence is unduly harsh and severe (see People v Lococo, 92 NY2d825, 827 [1998]). Finally, by pleading guilty, defendant forfeited his challenge to the court'sSandoval ruling (see People vIngram, 128 AD3d 1404, 1404 [4th Dept 2015], lv denied 25 NY3d 1202[2015]). Present—Whalen, P.J., Smith, DeJoseph, Troutman and Winslow, JJ.