SLISHEVSKY, JASON, PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
322
KA 14-02016
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JASON SLISHEVSKY, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN MCDERMOTT OF
COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered January 21, 2014. The judgment convicted
defendant, upon his plea of guilty, of course of sexual conduct
against a child in the first 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 course of sexual conduct against a child in the
first degree (Penal Law § 130.75 [1] [b]), defendant contends that his
waiver of the right to appeal is not valid. We reject that contention
and conclude that County Court engaged defendant “in an adequate
colloquy to ensure that the waiver of the right to appeal was a
knowing and voluntary choice” (People v Marshall, 144 AD3d 1544, 1545
[internal quotation marks omitted]; see People v Korber, 89 AD3d 1543,
1543, lv denied 19 NY3d 864). “[A] trial court need not engage in any
particular litany when apprising a defendant pleading guilty of the
individual rights abandoned” (People v Lopez, 6 NY3d 248, 256), and
“[t]he plea allocution as a whole establishes that defendant’s waiver
of the right to appeal was knowing, intelligent, and voluntary”
(People v Brown, 281 AD2d 962, 962, lv denied 96 NY2d 899). Here, we
conclude that the court “made clear that the waiver of the right to
appeal was a condition of [the] plea, not a consequence thereof, and
the record reflects that defendant understood that the waiver of the
right to appeal was ‘separate and distinct from those rights
automatically forfeited upon a plea of guilty’ ” (People v Graham, 77
AD3d 1439, 1439, lv denied 15 NY3d 920, quoting Lopez, 6 NY3d at 256).
The valid waiver of the right to appeal forecloses our review of
defendant’s contention that the sentence is unduly harsh and severe
(see generally Lopez, 6 NY3d at 255-256; People v Hidalgo, 91 NY2d
733, 737), as well as his constitutional challenges, which in any
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KA 14-02016
event we have already determined to be without merit (see People v
Slishevsky, 97 AD3d 1148, 1151, lv denied 20 NY3d 1015).
Entered: April 28, 2017 Frances E. Cafarell
Clerk of the Court