MITCHELL, ANTHONY A., PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
205
KA 10-01777
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ANTHONY A. MITCHELL, DEFENDANT-APPELLANT.
JOSEPH T. JARZEMBEK, BUFFALO, FOR DEFENDANT-APPELLANT.
JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Orleans County Court (James P.
Punch, J.), rendered July 19, 2010. The judgment convicted defendant,
upon his plea of guilty, of attempted criminal possession of a
controlled substance in the fifth degree.
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 attempted criminal possession of a
controlled substance in the fifth degree (Penal Law §§ 110.00, 220.06
[5]). Preliminarily, we note that defendant’s notice of appeal
recites an incorrect date on which judgment was rendered. Defendant’s
notice of appeal recites the correct indictment number, however, and
thus we exercise our discretion, in the interest of justice, and treat
the notice of appeal as valid (see CPL 460.10 [6]).
We reject defendant’s contention that the language used by County
Court during the plea allocution concerning his waiver of the right to
appeal was vague and did not absolutely prohibit defendant from
contesting the court’s suppression rulings on appeal. “ ‘[Trial
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
Gilbert, 17 AD3d 1164, 1164, lv denied 5 NY3d 762, quoting People v
Moistest, 76 NY2d 909, 910-911). Here, the record establishes that
the court stated that defendant was waiving his right to appeal, and
defendant indicated that he understood that he was waiving his right
to appeal. Defendant’s valid waiver of the right to appeal thus
encompasses his challenges to the court’s suppression rulings (see
People v Kemp, 94 NY2d 831, 833; Gilbert, 17 AD3d at 1164). To the
extent that defendant contends that his plea was not knowing,
intelligent, and voluntary, that contention in fact is premised on
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KA 10-01777
defendant’s challenge to the allegedly incorrect suppression rulings.
Thus, that contention is in effect also a challenge to the suppression
rulings, which is encompassed by the valid waiver of the right to
appeal (see Kemp, 94 NY2d at 833).
Entered: March 16, 2012 Frances E. Cafarell
Clerk of the Court