OBERDORF, CYNTHIA L., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
25
KA 13-01467
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CYNTHIA L. OBERDORF, DEFENDANT-APPELLANT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, ESQS.,
SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered July 3, 2013. The judgment convicted defendant,
upon her plea of guilty, of criminal sale of a controlled substance in
the second degree and criminal sale of a controlled substance in the
third degree (three counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her,
upon her plea of guilty, of one count of criminal sale of a controlled
substance in the second degree (Penal Law § 220.41 [1]) and three
counts of criminal sale of a controlled substance in the third degree
(§ 220.39 [1]). Contrary to the contention of defendant, her waiver
of the right to appeal was knowingly, intelligently and voluntarily
entered inasmuch as County Court’s lengthy colloquy about the waiver
established that defendant understood the terms and conditions of the
plea agreement, and “[t]he record . . . establish[es] that the
defendant understood 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). Any alleged deficiencies in the
written waiver of the right to appeal, which was executed at the time
of sentencing, are of no moment where, as here, there is an otherwise
valid oral waiver of the right to appeal (see People v Handly, 122
AD3d 1007, 1008; People v Irvine, 42 AD3d 949, 949-950, lv denied 9
NY3d 962).
The further contention of defendant that the plea was not
knowingly, intelligently and voluntarily entered owing to the manner
in which the plea allocution was conducted is, in effect, “a challenge
to the factual sufficiency of the plea allocution and thus is
encompassed by the valid waiver of the right to appeal” (People v
-2- 25
KA 13-01467
Brown, 66 AD3d 1385, 1385, lv denied 14 NY3d 839; see People v Korber,
89 AD3d 1543, 1543, lv denied 19 NY3d 864). “Moreover, defendant
failed to preserve that contention for our review inasmuch as [s]he
failed to move to withdraw the plea or to vacate the judgment of
conviction” (Korber, 89 AD3d at 1543; see People v Lewis, 114 AD3d
1310, 1311, lv denied 22 NY3d 1200).
Although defendant also contends that the bargained-for sentence
is unduly harsh and severe, “[t]he valid waiver of the right to appeal
encompasses defendant’s challenge to the severity of the bargained-for
sentence” (People v Smith, 37 AD3d 1141, 1142, lv denied 9 NY3d 851,
reconsideration denied 9 NY3d 926; see generally Lopez, 6 NY3d at
255). We note, however, that both the certificate of conviction and
the uniform sentence and commitment form should be amended because
they incorrectly reflect that defendant was sentenced as a second
felony offender when she was actually sentenced as a second felony
drug offender (see People v Labaff, 127 AD3d 1471, 1472, lv denied 26
NY3d 931; People v Easley, 124 AD3d 1284, 1285, lv denied 25 NY3d
1200).
Entered: February 5, 2016 Frances E. Cafarell
Clerk of the Court