| People v Fox |
| 2019 NY Slip Op 04584 [173 AD3d 1680] |
| June 7, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Raymond O. Fox, Jr., Appellant. |
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of counsel), fordefendant-appellant.
Caroline A. Wojtaszek, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.), renderedNovember 30, 2017. The judgment convicted defendant, upon his plea of guilty, of failure toregister and/or verify his status as a sex offender by failing to personally appear for an updatedphotograph.
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 offailure to register and/or verify his status as a sex offender by failing to personally appear for anupdated photograph (Correction Law §§ 168-f [2] [c-1]; 168-t). While weagree with defendant that the written waiver of the right to appeal does not establish a validwaiver because it was not executed until sentencing (see People v Brown, 148 AD3d 1562, 1562-1563 [4th Dept 2017],lv denied 29 NY3d 1124 [2017];People v Sims, 129 AD3d 1509, 1510 [4th Dept 2015], lv denied 26 NY3d 935[2015]; People v Pieper, 104 AD3d1225, 1225 [4th Dept 2013]), we nonetheless conclude that defendant validly waived hisright to appeal inasmuch as the record of the plea proceeding establishes that County Courtengaged defendant in "an adequate colloquy to ensure that the waiver of the right to appeal was aknowing and voluntary choice" (Peoplev Suttles, 107 AD3d 1467, 1468 [4th Dept 2013], lv denied 21 NY3d 1046[2013] [internal quotation marks omitted]; see People v Lopez, 6 NY3d 248, 256 [2006]). The court "madeclear that the waiver of the right to appeal was a condition of [the] plea, not a consequencethereof, and the record reflects that defendant understood that the waiver of the right to appealwas 'separate and distinct from those rights automatically forfeited upon a plea ofguilty' " (People v Graham,77 AD3d 1439, 1439 [4th Dept 2010], lv denied 15 NY3d 920 [2010], quotingLopez, 6 NY3d at 256; seePeople v Alfiere, 156 AD3d 1446, 1446 [4th Dept 2017], lv denied 31 NY3d980 [2018]). "Although defendant's release to parole supervision does not render his challenge tothe severity of the sentence moot because he remains under the control of the Parole Board untilhis sentence has terminated" (People vWilliams, 160 AD3d 1470, 1471 [4th Dept 2018] [internal quotation marks omitted]),the valid waiver of the right to appeal with respect to both the conviction and sentence foreclosesdefendant's challenge to the severity of his sentence (see Lopez, 6 NY3d at 255-256; cf. People v Maracle, 19 NY3d925, 928 [2012]). Present—Centra, J.P., Peradotto, DeJoseph, Curran and Winslow,JJ.