People v. Bryant

• Citation: 87 A.D.3d 1270,2011 N.Y. Slip Op. 06663,930 N.Y.S.2d 324
• Parties: The PEOPLE of the State of New York, Respondent,v.Thomas BRYANT, Defendant–Appellant.
• Decision Date: 30 September 2011
• Court: New York Supreme Court Appellate Division

87 A.D.3d 1270
930 N.Y.S.2d 324
2011 N.Y. Slip Op. 06663

The PEOPLE of the State of New York, Respondent,
v.
Thomas BRYANT, Defendant–Appellant.

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

Sept. 30, 2011.

[930 N.Y.S.2d 324]

Kathleen P. Reardon, Rochester, for Defendant–Appellant.Donald G. O'Geen, District Attorney, Warsaw (Marshall A. Kelly of Counsel), for Respondent.

[930 N.Y.S.2d 325]

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, GREEN, AND GORSKI, JJ.MEMORANDUM:

[87 A.D.3d 1270] Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted promoting prison contraband in the first degree (Penal Law §§ 110.00, 205.25[2] ). Contrary to defendant's contention, he knowingly, intelligently and voluntarily waived his right to appeal as a condition of the plea bargain ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). “County Court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” ( People v. James, 71 A.D.3d 1465, 1465, 898 N.Y.S.2d 391 [internal quotation marks omitted] ), and the record establishes that defendant “ ‘understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ ” ( People v. Dunham, 83 A.D.3d 1423, 1424, 919 N.Y.S.2d 258, quoting Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

Defendant further contends that the court abused its discretion in denying his motion to withdraw his Alford plea. Although that contention “ ‘survives his waiver of the right to appeal to the extent that [it] implicates the voluntariness of the plea’ ” ( People v. Dash, 74 A.D.3d 1859, 1860, 902 N.Y.S.2d 490, lv. denied 15 N.Y.3d 892, 912 N.Y.S.2d 581, 938 N.E.2d 1016; see People v. Toliver, 82 A.D.3d 1581, 919 N.Y.S.2d 256), we conclude that it is without merit. “The contention of defendant [87 A.D.3d 1271] that his plea was involuntary because he was coerced by [correctional facility personnel] is belied by his responses to the court's questions during the plea colloquy, indicating that he was pleading guilty voluntarily and that no threats or promises had induced the plea” ( Toliver, 82 A.D.3d at 1582, 919 N.Y.S.2d 256). Defendant's challenge to the factual sufficiency of the plea allocution is encompassed by the valid waiver of the right to appeal and is unpreserved for our review inasmuch as he did not move to withdraw the plea or to vacate the judgment of conviction on that ground ( see People v. McCarthy, 83 A.D.3d 1533, 1534, 921 N.Y.S.2d 755). In any event,...