People v. Diaz
| Decision Date | 22 April 2010 |
| Citation | 72 A.D.3d 1349,899 N.Y.S.2d 441 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Isabelino DIAZ, Appellant. |
| Court | New York Supreme Court — Appellate Division |
72 A.D.3d 1349
The PEOPLE of the State of New York, Respondent,
v.
Isabelino DIAZ, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
April 22, 2010.
Carl J. Silverstein, Lakeland, Florida, for appellant.
James R. Farrell, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.
Before: CARDONA, P.J., MERCURE, SPAIN, KAVANAGH and GARRY, JJ.
SPAIN, J.
Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered February 17, 2009, convicting defendant upon his plea of guilty of the crime of attempted murder in the second degree.
In April 2008, defendant shot his 16-year-old stepdaughter multiple times, striking her in the head and once in the hand that she had raised in an attempt to protect herself. As a result of the incident, defendant was charged by indictment with attempted murder in the second degree, criminal use of a firearm in the first degree, assault in the first degree and two counts of criminal possession of a weapon in the second degree. After undergoing two court-ordered psychiatric examinations confirming his competency to stand trial, defendant pleaded guilty to attempted murder in the second degree in full satisfaction of the indictment, waived his right to appeal and was sentenced, pursuant to the negotiated plea agreement, to 20 years in prison followed by five years of postrelease supervision. Defendant appeals.
Defendant asserts that the record fails to demonstrate a knowing, voluntary and intelligent waiver of his right to appeal. We disagree. Defendant, assisted by counsel, executed a detailed written appeal waiver during his plea colloquy. The written waiver reflects defendant's understanding that the waiver of his right to appeal is separate and distinct from the rights he relinquished by pleading guilty, indicates that defendant was provided a full opportunity to discuss the waiver and
its consequences with his attorney, and confirms that defendant was waiving the right voluntarily ( see People v. McKenzie, 66 A.D.3d 1056, 1056, 887 N.Y.S.2d 685 [2009]; People v. Ramirez, 42 A.D.3d 671, 671-672, 839 N.Y.S.2d 327 [2007] ). Moreover, in addition to addressing on the record the ramifications of waiving the right to appeal, County Court ensured that defendant had all the time he needed to discuss the matter with counsel prior to executing the written waiver. After defendant had done so...To continue reading
Request your trial
-
People v. McCaskill
...45 A.D.3d 970, 970, 845 N.Y.S.2d 174 [2007], lv. denied 10 N.Y.3d 814, 857 N.Y.S.2d 47, 886 N.E.2d 812 [2008]; see People v. Diaz, 72 A.D.3d 1349, 1350, 899 N.Y.S.2d 441 [2010]; People v. Stokely, 49 A.D.3d 966, 967-968, 853 N.Y.S.2d 221 [2008]...
-
People v. Pendelton
...these circumstances, we find that defendant knowingly, voluntarily and intelligently waived his right to appeal ( see People v. Diaz, 72 A.D.3d 1349, 1350, 899 N.Y.S.2d 441 [2010], lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 461, 933 N.E.2d 1054 [2010]; People v. Thomas, 71 A.D.3d at 1231, 896 N......
-
People v. Mydosh
...understanding that the waiver was separate and distinct from the rights he was relinquishing by pleading guilty ( see People v. Diaz, 72 A.D.3d 1349, 1350, 899 N.Y.S.2d 441 [2010],lv. denied15 N.Y.3d 773, 907 N.Y.S.2d 461, 933 N.E.2d 1054 [2010] ) and that he was thoroughly advised of its r......
-
People v. Martinez–velazquez
...81 A.D.3d 1037, 1037, 916 N.Y.S.2d 297 [2011], lv. denied 16 N.Y.3d 898, 926 N.Y.S.2d 33, 949 N.E.2d 981 [2011]; People v. Diaz, 72 A.D.3d 1349, 1350, 899 N.Y.S.2d 441 [2010], lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 461, 933 N.E.2d 1054 [2010] ). Defendant's claim that his plea was not volun......