People v. Braxton

• Decision Date: 19 June 2015
• Docket Number: 794 KA 13-00500
• Citation: 129 A.D.3d 1674,10 N.Y.S.3d 791,2015 N.Y. Slip Op. 05366
• Parties: The PEOPLE of the State of New York, Respondent, v. Lester A. BRAXTON, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1674

10 N.Y.S.3d 791

2015 N.Y. Slip Op. 05366

The PEOPLE of the State of New York, Respondent

v.Lester A. BRAXTON, Defendant–Appellant.

794 KA 13-00500

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

June 19, 2015.

Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, and WHALEN, JJ.

OpinionMEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03[3] ) and driving while intoxicated ( Vehicle and Traffic Law § 1192[3] ). Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived his right to appeal (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). We agree with defendant that County Court's statement to defendant that, “by pleading guilty, [he would] give up the right to allege the police unlawfully collected evidence or did anything else illegal” was misleading to the extent that it improperly implied that defendant's right to challenge the court's suppression ruling on appeal was automatically extinguished upon the entry of his guilty plea (see generally People v. Moyett, 7 N.Y.3d 892, 892–893, 826 N.Y.S.2d 597, 860 N.E.2d 59 ; People v. Williams, 49 A.D.3d 1281, 1282, 856 N.Y.S.2d 334, lv. denied 10 N.Y.3d 940, 862 N.Y.S.2d 347, 892 N.E.2d 413 ). Nevertheless, we conclude that “ ‘County Court's plea colloquy, together with the written waiver of the right to appeal, adequately apprised defendant that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” (People v. Arney, 120 A.D.3d 949, 949, 990 N.Y.S.2d 752 ; see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; Williams, 49 A.D.3d at 1282, 856 N.Y.S.2d 334 ). Defendant's valid waiver of the right to appeal encompasses his challenge to the court's suppression ruling (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ), and his challenge to the severity of the bargained-for sentence (see Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.