| People v Cuellar |
| 2019 NY Slip Op 05680 [174 AD3d 733] |
| July 17, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Manuel Cuellar, Appellant. |
Steven A. Feldman, Uniondale, NY, for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Elizabeth Miller of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (FernandoCamacho, J.), rendered September 30, 2015, convicting him of arson in the second degree, uponhis plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was charged with arson in the second degree, burglary in the second degree,menacing in the third degree, and assault in the second degree upon allegations that, onDecember 25, 2014, he broke into a house where his ex-girlfriend and others resided. Thedefendant allegedly menaced his ex-girlfriend while inside the house. He then allegedly startedtwo fires in the house, knowing that the residents were inside the house at the time. The residentswere able to leave the house and call 911. When the police arrived, the defendant attempted toflee in his vehicle and allegedly injured a police officer.
The defendant pleaded guilty to arson in the second degree in full satisfaction of theindictment. As a condition of the plea agreement, the defendant agreed to waive his right toappeal. The defendant appeals from the judgment of conviction, contending that he did notknowingly, voluntarily, and intelligently waive his right to appeal, and that the County Courtimprovidently exercised its discretion in denying his oral request to substitute assignedcounsel.
Contrary to the defendant's contention, his waiver of the right to appeal was valid. A waiverof the right to appeal is effective only so long as the record demonstrates that it was madeknowingly, voluntarily, and intelligently (see People v Sanders, 25 NY3d 337 [2015]). Although a trial courtneed not engage in any particular litany when apprising a defendant pleading guilty of theindividual rights abandoned, it must make certain that a defendant's understanding of the termsand conditions of a plea agreement is evident on the face of the record (see People v Lopez, 6 NY3d 248[2006]). The record must establish that the defendant understood that the right to appeal isseparate and distinct from those rights automatically forfeited upon a plea of guilty (seeid.). Here, the record demonstrates that the County Court's colloquy with the defendant andthe written waiver of the right to appeal executed by the defendant sufficiently apprised him ofthe nature and significance of the right that he was being asked to waive, and that the defendanthad a full appreciation of the consequences of the waiver of that right (see id.).
The defendant's valid waiver of his right to appeal precludes appellate review of hiscontention that his preplea request to relieve assigned counsel and to substitute new counsel wasimproperly denied (see People vColeman, 164 AD3d 518, 518 [2018]; People v Harris, 153 AD3d 552, 552-553 [2017]). Chambers, J.P.,Miller, LaSalle and Christopher, JJ., concur.