| People v Brackett |
| 2019 NY Slip Op 05946 [174 AD3d 1542] |
| July 31, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Michael Brackett, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Deborah K. Jessey of counsel), fordefendant-appellant.
John J. Flynn, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered August 1, 2016. The judgment convicted defendant, upon his plea of guilty, of robberyin the first 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 ofrobbery in the first degree (Penal Law § 160.15 [2]). While we agree with defendantthat the written waiver of the right to appeal does not establish a valid waiver because SupremeCourt "did not inquire of defendant whether he understood the written waiver or whether he hadeven read the waiver before signing it" (People v Bradshaw, 18 NY3d 257, 262 [2011]; see People v Grucza, 145 AD3d1505, 1506 [4th Dept 2016]), we nonetheless conclude that defendant validly waived hisright to appeal inasmuch as the record establishes that the court engaged defendant in "anadequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntarychoice" (People v Rodriguez, 93AD3d 1334, 1335 [4th Dept 2012], lv denied 19 NY3d 966 [2012] [internalquotation marks omitted]; see People vLopez, 6 NY3d 248, 256 [2006]). Contrary to defendant's contention, we conclude thatthe valid waiver encompasses his challenge to the severity of the sentence (see Lopez, 6NY3d at 255-256; cf. People vMaracle, 19 NY3d 925, 928 [2012]). Present—Peradotto, J.P., Lindley, NeMoyer,Curran and Troutman, JJ.