MCCLAIN, KYLE, PEOPLE v ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1250
KA 11-02337
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
KYLE MCCLAIN, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN RUSSO-MCLAUGHLIN
OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered August 9, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree, unlawful possession of marihuana and failure to
obey a stop sign.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon a plea of guilty of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]), unlawful possession of marihuana (§
221.05), and failure to obey a stop sign (Vehicle and Traffic Law §
1172 [a]). We reject defendant’s contention that his waiver of the
right to appeal was invalid. “[T]rial courts are not required to
engage in any particular litany during an allocution in order to
obtain a valid guilty plea in which defendant waives a plethora of
rights, including the right to appeal” (People v Mitchell, 93 AD3d
1173, 1173-1174, lv denied 19 NY3d 999 [internal quotation marks
omitted]; see People v Fisher, 94 AD3d 1435, 1435, lv denied 19 NY3d
973). The record establishes that defendant waived his right to
appeal in order to secure a sentencing commitment, and Supreme Court
properly “ ‘describ[ed] the nature of the right being waived without
lumping that right into the panoply of trial rights automatically
forfeited upon pleading guilty’ ” (People v Tabb, 81 AD3d 1322, 1322,
lv denied 16 NY3d 900, quoting People v Lopez, 6 NY3d 248, 257).
Defendant’s valid waiver of the right to appeal encompasses his
challenge to the court’s suppression rulings (see Mitchell, 93 AD3d at
1174).
Entered: December 27, 2013 Frances E. Cafarell
Clerk of the Court