CARR, GARY L., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1093
KA 14-02215
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
GARY L. CARR, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MICHAEL
J. HILLERY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered November 26, 2014. The judgment
convicted defendant, upon his plea of guilty, of attempted assault in
the first 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 attempted assault in the first degree
(Penal Law §§ 110.00, 120.10 [1]). Contrary to defendant’s
contention, his waiver of the right to appeal “was not rendered
invalid based on [Supreme Court]’s failure to require defendant to
articulate the waiver in his own words” (People v Dozier, 59 AD3d 987,
987, lv denied 12 NY3d 815; cf. People v Ramos, 152 AD2d 209, 211-
212), and defendant’s “responses during the plea colloquy and his
execution of a written waiver of the right to appeal establish that he
intelligently, knowingly, and voluntarily waived his right to appeal”
(People v Rumsey, 105 AD3d 1448, 1449, lv denied 21 NY3d 1019; see
generally People v Sanders, 25 NY3d 337, 340-341). The valid waiver
of the right to appeal encompasses defendant’s challenge to the
severity of the sentence (see People v Lopez, 6 NY3d 248, 256).
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court