People v. Colucci

• Citation: 2012 N.Y. Slip Op. 02978,942 N.Y.S.2d 395,94 A.D.3d 1419
• Parties: The PEOPLE of the State of New York, Respondent, v. Randy COLUCCI, Sr., Defendant–Appellant.
• Decision Date: 20 April 2012
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02978

94 A.D.3d 1419

942 N.Y.S.2d 395

The PEOPLE of the State of New York, Respondent,

v.Randy COLUCCI, Sr., Defendant–Appellant.

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

April 20, 2012.

Kathleen E. Casey, Barker, for defendant-appellant.

Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of Counsel), for respondent.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the second degree (Penal Law § 125.15 [1] ). We conclude that defendant's contentions regarding his waiver of the right to challenge the judgment of conviction by motion pursuant to CPL articles 330 and 440 or by writ of coram nobis are premature ( see People v. Hill, 93 A.D.3d 1237, 939 N.Y.S.2d 919, 920). It is settled that the courts of this State may decide only controversies that are presently justiciable. To be justiciable, a controversy must “involve present, rather than hypothetical, contingent or remote, prejudice” to a party ( American Ins. Assn. v. Chu, 64 N.Y.2d 379, 383, 487 N.Y.S.2d 311, 476 N.E.2d 637, appeal dismissed and cert. denied 474 U.S. 803, 106 S.Ct. 36, 88 L.Ed.2d 29). Here, defendant's contentions with respect to such postjudgment relief “seek[ ] merely an advisory opinion” ( Hill, 93 A.D.3d 1237, 939 N.Y.S.2d at 920).

We reject defendant's further contention that his waiver of the right to appeal was invalid ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Defendant signed a written waiver of the right to appeal, and the plea colloquy demonstrates that he knowingly, intelligently and voluntarily waived the right to appeal ( see People v. James, 71 A.D.3d 1465, 1465, 898 N.Y.S.2d 391). Further, the record establishes that he “ ‘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, lv. denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097, quoting Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

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

PRESENT: SMITH, J.P., LINDLEY, SCONIERS, and MARTOCHE, JJ., concur.