TALLEY, STEVEN, PEOPLE v ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1268
KA 13-00055
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
STEVEN TALLEY, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Gerald
J. Whalen, J.), rendered July 11, 2011. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a controlled substance in the fourth degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of attempted criminal possession of a controlled
substance in the fourth degree (Penal Law §§ 110.00, 220.09 [1]),
defendant contends that his waiver of the right to appeal is
unenforceable and that his sentence is unduly harsh and severe. The
record demonstrates, however, that Supreme Court “engage[d] the
defendant in an adequate colloquy to ensure that the waiver of the
right to appeal was a knowing and voluntary choice” (People v Burt,
101 AD3d 1729, 1730, lv denied 20 NY3d 1060 [internal quotation marks
omitted]), and that defendant also signed a written waiver of the
right to appeal (see People v Pulley, 107 AD3d 1560, 1561, lv denied
21 NY3d 1076). We thus conclude that the waiver is enforceable and
that defendant is thereby foreclosed from challenging the severity of
his sentence (see People v Lopez, 6 NY3d 248, 256; People v Suttles,
107 AD3d 1467, 1468, lv denied 21 NY3d 1046).
Entered: December 27, 2013 Frances E. Cafarell
Clerk of the Court