FINCH, BENJAMIN, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
756
KA 10-02502
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
BENJAMIN FINCH, DEFENDANT-APPELLANT.
JAMES DOWSEY, III, ELLICOTTVILLE (KELIANN M. ELNISKI OF COUNSEL), FOR
DEFENDANT-APPELLANT.
LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cattaraugus County Court (Larry M.
Himelein, J.), rendered September 20, 2010. The judgment convicted
defendant, upon his plea of guilty, of arson in the third 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 of arson in the third degree (Penal Law §
150.10 [1]). We reject defendant’s contention that County Court made
an insufficient inquiry regarding his waiver of the right to appeal
and thus that the waiver is invalid. “The court need not engage in
any particular litany regarding a waiver of the right to appeal, so
long as the court ‘make[s] certain that a defendant’s understanding of
the terms and conditions of a plea agreement is evident on the face of
the record’ ” (People v Miller, 87 AD3d 1303, 1303, lv denied 18 NY3d
926, quoting People v Lopez, 6 NY3d 248, 256). Here, the record
establishes that defendant’s waiver of the right to appeal was
knowing, intelligent, and voluntary (see Lopez, 6 NY3d at 256; Miller,
87 AD3d at 1303).
Defendant failed to preserve for our review his contention that
his plea was not voluntarily entered “because . . . he failed to move
to withdraw the plea or to vacate the judgment of conviction” (People
v Connolly, 70 AD3d 1510, 1511, lv denied 14 NY3d 886). In any event,
that contention lacks merit. The record of the plea colloquy
establishes that defendant stated that he understood the nature of the
rights that he was relinquishing by pleading guilty, that he had not
been coerced into entering the plea, and that he was not promised
anything in exchange for his guilty plea. Indeed, he expressly stated
that he was entering the plea voluntarily after having sufficient time
to consult with his attorney. “[T]he record [thus] establishes that
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KA 10-02502
defendant understood the nature and consequences of his actions”
(People v Watkins, 77 AD3d 1403, 1403-1404, lv denied 15 NY3d 956).
Defendant’s challenge to the validity of his waiver of his Miranda
rights is encompassed by his waiver of the right to appeal (see People
v Kemp, 94 NY2d 831, 833; People v Mitchell, 93 AD3d 1173, 1174).
Finally, we agree with defendant that his challenge to the
jurisdictional requirements of the waiver of indictment and the
superior court information need not be preserved for our review (see
People v Boston, 75 NY2d 585, 589 n; People v Waid, 26 AD3d 734, 734-
735, lv denied 6 NY3d 839), and that his challenge is not precluded by
his valid waiver of the right to appeal (see Waid, 26 AD3d at 734-735;
People v Verrone, 266 AD2d 16, 18). Nevertheless, we conclude that
defendant’s contention lacks merit.
Entered: June 8, 2012 Frances E. Cafarell
Clerk of the Court