| People v Cromie |
| 2020 NY Slip Op 05647 [187 AD3d 1659] |
| October 9, 2020 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Steven Cromie, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Sara A. Goldfarb of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Kenneth H. Tyler, Jr., of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Matthew J. Doran, J.), renderedMarch 12, 2018. The judgment convicted defendant upon a plea of guilty of possessing a sexualperformance by a child (five counts).
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 offive counts of possessing a sexual performance by a child (Penal Law § 263.16).We reject defendant's contention that his waiver of the right to appeal is invalid. Contrary todefendant's contention, County Court's oral colloquy amply established that the right to appealwas "separate and distinct" from those rights automatically forfeited by pleading guilty (People v Lopez, 6 NY3d 248, 256[2006]; see People v Bryant, 28NY3d 1094, 1096 [2016]) and did not "utterly mischaracterize[ ] the nature of the right. . . defendant was being asked to cede" (People v Thomas, 34 NY3d 545, 565 [2019], cert denied589 US &mdash, 140 S Ct 2634 [Mar. 30, 2020] [internal quotation marks omitted]). Indeed, wenote with approval the court's reliance on the Model Colloquy, which "neatly synthesizes. . . the governing principles" regarding the waiver of the right to appeal (id.at 567; see NY Model Colloquies, Waiver of Right to Appeal,http://www.nycourts.gov/judges/cji/8-Colloquies/Waiver%20of%20Right%20to%20Appeal.pdf).Additionally, the court informed defendant, before he entered his plea, "that the waiver would bea condition of the plea . . . , and the court assured itself prior to the completion ofthe plea proceeding . . . that defendant adequately understood the right that [he] wasforgoing" (People v Love, 179AD3d 1541, 1542 [4th Dept 2020], lv denied 35 NY3d 994 [2020] [internalquotation marks omitted]; see generallyPeople v Bradshaw, 18 NY3d 257, 264-265 [2011]).
Defendant's valid waiver of the right to appeal encompasses his challenge to the severity ofthe sentence (see Lopez, 6 NY3d at 255-256). Present—Carni, J.P., Lindley,NeMoyer, Curran and Bannister, JJ.