People v. Toney , 153 A.D.3d 1583 ( 2017 )

People v Toney (2017 NY Slip Op 06751)

People v Toney

2017 NY Slip Op 06751

Decided on September 29, 2017

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 29, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, TROUTMAN, AND WINSLOW, JJ.

969 KA 15-01684

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

KEITH A. TONEY, DEFENDANT-APPELLANT.

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (KATHERINE BOGAN OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered August 17, 2015. The judgment convicted defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third 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 criminal sale of a controlled substance in the third degree (Penal Law §§ 110.00, 220.39 [1]). We reject defendant's contention that he did not knowingly waive his right to appeal. County Court "expressly ascertained from defendant that, as a condition of the plea, he was agreeing to waive his right to appeal" (People v McCrea, 140 AD3d 1655, 1655, lv denied 28 NY3d 933 [internal quotation marks omitted]) and, contrary to defendant's contention, the record establishes that the court did not conflate the waiver of the right to appeal with those rights automatically forfeited by a guilty plea (see id.). The court also specifically explained that the waiver included any challenge to the severity of the sentence, thereby foreclosing any such challenge on appeal (see People v Lopez, 6 NY3d 248, 255-256).

Defendant further contends that his plea was not knowingly, intelligently, and voluntarily entered. Although a challenge to the voluntariness of the plea survives a valid waiver of the right to appeal (see People v Shaw, 133 AD3d 1312, 1313, lv denied 26 NY3d 1150), defendant failed to preserve his contention for our review because he did not move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v Garcia-Cruz, 138 AD3d 1414, 1414-1415, lv denied 28 NY3d 929; see generally People v Wisniewski, 128 AD3d 1481, 1481, lv denied 26 NY3d 937). In any event, defendant's " yes' and no' answers during the plea colloqu[y] do not invalidate his guilty plea[]" (People v Russell, 133 AD3d 1199, 1199, lv denied 26 NY3d 1149; see People v Alicea, 148 AD3d 1662, 1663, lv denied ___ NY3d ___ [Aug. 3, 2017]; People v Dunham, 83 AD3d 1423, 1424, lv denied 17 NY3d 794).

Entered: September 29, 2017

Mark W. Bennett

Clerk of the Court