People v. Biaselli

• Decision Date: 31 January 2020
• Docket Number: 1280,KA 18–01034
• Citation: 179 A.D.3d 1533,119 N.Y.S.3d 345
• Parties: The PEOPLE of the State of New York, Respondent, v. Joshua D. BIASELLI, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 1533
119 N.Y.S.3d 345

The PEOPLE of the State of New York, Respondent,
v.
Joshua D. BIASELLI, Defendant–Appellant.

1280
KA 18–01034

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: January 31, 2020

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF COUNSEL), FOR DEFENDANT–APPELLANT.

JOSEPH V. CARDONE, DISTRICT ATTORNEY, ALBION (SUSAN M. HOWARD OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

179 A.D.3d 1533

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 driving while intoxicated, as a class E felony ( Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][i][A] ). Although we agree with defendant "that the written waiver of the right to appeal does not establish a valid waiver because [County] Court ‘did not inquire of defendant whether he understood the written waiver or whether he had even read the waiver before signing it’ " ( People v. Brackett, 174 A.D.3d 1542, 1542, 103 N.Y.S.3d 898 [4th Dept. 2019], lv denied 34 N.Y.3d 949, 110 N.Y.S.3d 623, 134 N.E.3d 622 [2019], quoting

119 N.Y.S.3d 347

People v. Bradshaw, 18 N.Y.3d 257, 262, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; see People v. Saeli, 136 A.D.3d 1290, 1291, 24 N.Y.S.3d 544 [4th Dept. 2016] ), we

179 A.D.3d 1534

conclude that defendant's oral waiver of the right to appeal was knowingly, intelligently, and voluntarily entered (see Brackett, 174 A.D.3d at 1542, 103 N.Y.S.3d 898 ; see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). The court engaged defendant in " ‘an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ " ( Brackett, 174 A.D.3d at 1542, 103 N.Y.S.3d 898 ; see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Defendant's contention that the waiver was invalid because he simply answered "yes" to the court's explanation is without merit inasmuch as "a waiver of the right to appeal [is] not rendered invalid based on [a] court's failure to require [the] defendant to articulate the waiver in his [or her] own words" ( People v. Watson, 169 A.D.3d 1526, 1527, 93 N.Y.S.3d 507 [4th Dept. 2019], lv denied 33 N.Y.3d 982, 101 N.Y.S.3d 246, 124...