LATHROP, KENNETH S., PEOPLE v ( 2016 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    89
    KA 14-02223
    PRESENT: WHALEN, P.J., SMITH, CENTRA, CARNI, AND SCUDDER, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    KENNETH S. LATHROP, DEFENDANT-APPELLANT.
    DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Supreme Court, Niagara County
    (Richard C. Kloch, Sr., A.J.), rendered June 11, 2014. The judgment
    convicted defendant, upon his plea of guilty, of reckless assault of a
    child.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously affirmed.
    Memorandum: Defendant appeals from a judgment convicting him
    upon his guilty plea of reckless assault of a child (Penal Law §
    120.02 [1]). Contrary to defendant’s contention, the record
    establishes that he validly waived his right to appeal both orally and
    in writing before pleading guilty. The record establishes that
    Supreme Court conducted “ ‘an adequate colloquy to ensure that the
    waiver of the right to appeal was a knowing and voluntary choice’ ”
    (People v Glasper, 46 AD3d 1401, 1401, lv denied 10 NY3d 863; see
    People v Barber, 117 AD3d 1430, 1430, lv denied 24 NY3d 1081).
    Defendant contends that his plea was not knowingly and intelligently
    entered because he did not admit that his actions caused a serious
    physical injury to the child. Defendant’s contention is actually a
    challenge to the factual sufficiency of the plea allocution (see
    People v Schmidli, 118 AD3d 1491, 1491, lv denied 23 NY3d 1067; People
    v Daniels, 59 AD3d 943, 943, lv denied 12 NY3d 852), which does not
    survive his valid waiver of the right to appeal (see People v
    Zimmerman, 100 AD3d 1360, 1361, lv denied 20 NY3d 1015; People v
    Wackwitz, 93 AD3d 1220, 1221, lv denied 19 NY3d 868; Daniels, 59 AD3d
    at 943). In any event, defendant failed to preserve that contention
    for our review because he did not move to withdraw the plea or to
    vacate the judgment of conviction on that ground (see Wackwitz, 93
    AD3d at 1221; People v Copp, 78 AD3d 1548, 1549, lv denied 16 NY3d
    797). To the extent that defendant contends that the court abused its
    discretion in denying his motion to withdraw his plea, we conclude
    -2-                            89
    KA 14-02223
    that it is without merit (see People v Davis, 129 AD3d 1613, 1613-
    1614, lv denied 26 NY3d 966). The valid waiver of the right to appeal
    encompasses defendant’s further contention that the sentence is unduly
    harsh and severe (see People v Lopez, 6 NY3d 248, 256).
    Entered:   February 5, 2016                     Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 14-02223

Filed Date: 2/5/2016

Precedential Status: Precedential

Modified Date: 10/7/2016