| People v Giles |
| 2023 NY Slip Op 04877 [219 AD3d 1706] |
| September 29, 2023 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Levert J. Giles, Appellant. |
Hayden M. Dadd, Conflict Defender, Geneseo (Bradley E. Keem of counsel), fordefendant-appellant.
Gregory J. McCaffrey, District Attorney, Geneseo (Joshua J. Tonra of counsel), forrespondent.
Appeal from a judgment of the Livingston County Court (Kevin Van Allen, J.),rendered July 6, 2021. The judgment convicted defendant upon his plea of guilty ofcriminal possession of a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]), defendant contends that he did not validly waive his right toappeal. We reject that contention.
Here, the record establishes that defendant's waiver of the right to appeal wasknowing, voluntary, and intelligent (see People v Cunningham, 213 AD3d 1270, 1270 [4thDept 2023], lv denied 39 NY3d 1110 [2023]; see generally People v Thomas, 34 NY3d 545, 559-564[2019], cert denied 589 US &mdash, 140 S Ct 2634 [2020]; People v Lopez, 6 NY3d248, 256 [2006]), and we note that County Court used the appropriate modelcolloquy with respect to the waiver of the right to appeal (see generally Thomas,34 NY3d at 567; People vOsgood, 210 AD3d 1426, 1427 [4th Dept 2022], lv denied 39 NY3d1079 [2023]). Contrary to defendant's assertion, the court "made clear that the waiver ofthe right to appeal was a condition of [the] plea, not a consequence thereof, and therecord reflects that defendant understood that the waiver of the right to appeal was'separate and distinct from those rights automatically forfeited upon a plea ofguilty' " (People vGraham, 77 AD3d 1439, 1439 [4th Dept 2010], lv denied 15 NY3d 920[2010], quoting Lopez, 6 NY3d at 256; see People v Slishevsky, 149 AD3d 1488, 1489 [4th Dept2017], lv denied 29 NY3d 1086 [2017]). Defendant also asserts that he did notvalidly waive his right to appeal because the court listed several claims of error thatwould survive a valid waiver but failed to explain that the list was nonexhaustive andwould also include any issue involving a right of a constitutional dimension that went tothe very heart of the process. That assertion lacks merit. The record establishes that thecourt, following the model colloquy, explained that the listed issues were "[a]mong thelimited number of claims" of error that would survive a valid waiver and, contrary todefendant's suggestion, "[n]o 'particular litany' is required for a waiver of the right toappeal to be valid" (People vWood, 217 AD3d 1407, 1408 [4th Dept 2023], quoting Lopez, 6 NY3dat 256; see People v Parker,151 AD3d 1876, 1876 [4th Dept 2017], lv denied 30 NY3d 982 [2017]). Wethus conclude that defendant validly waived his right to appeal inasmuch as the recordestablishes that the court engaged defendant in "an adequate colloquy to ensure that thewaiver of the right to appeal was a knowing and voluntary choice" (People v Brackett, 174 AD3d1542, 1542 [4th Dept 2019], lv denied 34 NY3d 949 [2019] [internalquotation marks omitted]).
Defendant's further contention that his plea was "not voluntarily entered because [he]provided only monosyllabic responses to [the court's] questions is actually a challenge tothe factual sufficiency of the plea allocution" (People v Hendrix, 62 AD3d 1261, 1262 [4th Dept [*2]2009], lv denied 12 NY3d 925 [2009]), which isencompassed by the valid waiver of the right to appeal (see People v Alsaifullah, 162AD3d 1483, 1485 [4th Dept 2018], lv denied 32 NY3d 1062 [2018]).Defendant's valid waiver of the right to appeal also encompasses his challenges to thecourt's suppression ruling (seePeople v Sanders, 25 NY3d 337, 342 [2015]; People v Kemp, 94 NY2d831, 833 [1999]) and to the severity of his sentence (see Lopez, 6 NY3d at255-256).
Finally, we note that the plea proceeding and the sentence reflect defendant's statusas a second felony drug offender (Penal Law § 70.70 [1] [b]), and therecord thus confirms that the court merely misstated during sentencing that defendantwas a second felony offender rather than a second felony drug offender (see People v Bradley, 196AD3d 1168, 1170-1171 [4th Dept 2021]; People v Feliciano, 108 AD3d 880, 881 n 1 [3d Dept2013], lv denied 22 NY3d 1040 [2013]). Inasmuch as the uniform sentence andcommitment form incorrectly reflects that defendant was sentenced as a second felonyoffender, it must be amended to reflect that he was sentenced as a second felony drugoffender (see Bradley, 196 AD3d at 1171). Present—Smith, J.P., Montour,Greenwood, Nowak and DelConte, JJ.