| People v Wilson |
| 2023 NY Slip Op 03629 [217 AD3d 1561] |
| June 30, 2023 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Michael Wilson, Sr., Appellant. |
Kathleen E. Casey, Barker, for defendant-appellant.
Brian D. Seaman, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Matthew J. Murphy, III, J.),rendered December 15, 2020. The judgment convicted defendant upon a plea of guilty ofassault in the first degree, attempted assault in the second degree and endangering thewelfare of a child.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of assault in the first degree (Penal Law § 120.10 [3]), attemptedassault in the second degree (§§ 110.00, 120.05 [9]), and endangeringthe welfare of a child (§ 260.10 [1]).
We reject defendant's contention that his waiver of the right to appeal is invalid.County Court's oral colloquy amply established that the right to appeal was "separate anddistinct" from those rights automatically forfeited by pleading guilty (People v Lopez, 6 NY3d248, 256 [2006]; see Peoplev Cromie, 187 AD3d 1659, 1659 [4th Dept 2020]) and did not "utterlymischaracterize[ ] the nature of the right . . . defendant was being asked tocede" (People v Thomas, 34NY3d 545, 565 [2019], cert denied 589 US —, 140 S Ct 2634 [2020][internal quotation marks omitted]). Indeed, we note with approval the court's reliance onthe Model Colloquy, which "neatly synthesizes . . . the governingprinciples" regarding the waiver of the right to appeal (id. at 567; see NYModel Colloquies, Waiver of Right to Appeal,https://www.nycourts.gov/judges/cji/8-Colloquies/Waiver_of_Right_to_Appeal.pdf). Inaddition, the court informed defendant, before he entered his plea, that any challenge tothe severity of his sentence would be encompassed by the waiver of his right to appeal,while clarifying that the legality of the sentence could still be challenged on appeal.Thus, "all the relevant circumstances reveal a knowing and voluntary waiver"(Thomas, 34 NY3d at 563).
Defendant's valid waiver of the right to appeal encompasses his challenge to theseverity of the sentence (see Lopez, 6 NY3d at 255-256).Present—Peradotto, J.P., Bannister, Montour and Greenwood, JJ.