BRAND, DALE W., PEOPLE v ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1222
KA 12-00374
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DALE W. BRAND, 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 Erie County Court (Thomas P.
Franczyk, J.), rendered December 21, 2011. The judgment convicted
defendant, upon his plea of guilty, of assault in the second degree
and criminal possession of a weapon in the third 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 assault in the second degree (Penal Law § 120.05
[2]) and criminal possession of a weapon in the third degree (§ 265.02
[1]), defendant contends that his waiver of the right to appeal was
invalid. We reject that contention. The plea colloquy conducted by
County Court adequately apprised defendant that “the right to appeal
is separate and distinct from those rights automatically forfeited
upon a plea of guilty” (People v Lopez, 6 NY3d 248, 256; see People v
Graham, 77 AD3d 1439, 1439, lv denied 15 NY3d 920). Contrary to
defendant’s contention, his “ ‘waiver [of the right to appeal] is not
invalid on the ground that the court did not specifically inform [him]
that his general waiver of the right to appeal encompassed the court’s
suppression rulings’ ” (Graham, 77 AD3d at 1439). Moreover,
defendant’s history of mental illness did not invalidate the waiver of
the right to appeal inasmuch as there was no showing that “ ‘defendant
was uninformed, confused or incompetent when he’ waived his right to
appeal” (People v DeFazio, 105 AD3d 1438, 1439, lv denied 21 NY3d
1015). The valid waiver by defendant of the right to appeal
encompasses his challenge to the suppression rulings (see People v
Kemp, 94 NY2d 831, 833), and his challenge to the severity of the
sentence (see Lopez, 6 NY3d at 255-256; see generally People v
-2- 1222
KA 12-00374
Hidalgo, 91 NY2d 733, 737).
Entered: December 27, 2013 Frances E. Cafarell
Clerk of the Court