People v. Dunham

• Decision Date: 01 April 2011
• Parties: The PEOPLE of the State of New York, Respondent,v.Robert R. DUNHAM, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1423
919 N.Y.S.2d 258
2011 N.Y. Slip Op. 02574

The PEOPLE of the State of New York, Respondent,
v.
Robert R. DUNHAM, Defendant–Appellant.

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

April 1, 2011.

[919 N.Y.S.2d 259]

David J. Pajak, Alden, for Defendant–Appellant.Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of Counsel), for Respondent.PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.MEMORANDUM:

[83 A.D.3d 1424] Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted forgery in the second degree (Penal Law §§ 110.00, 170.10[1] ) and grand larceny in the fourth degree (§ 155.30[8] ). We reject defendant's contention that his waiver of the right to appeal was not knowing and voluntary. Although “a trial court need not engage in any particular litany when apprising a defendant pleading guilty of the individual rights abandoned, it must make certain that a defendant's understanding of the terms and conditions of a plea agreement is evident on the face of the record” ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; see People v. McDonald, 270 A.D.2d 955, 705 N.Y.S.2d 308, lv. denied 95 N.Y.2d 800, 711 N.Y.S.2d 168, 733 N.E.2d 240). “The record must establish that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Here, the record establishes that defendant indicated that he had spoken with defense counsel and understood that he was waiving his right to appeal as a condition of the plea. Further, defendant's monosyllabic affirmative responses to questioning by County Court do not render his plea unknowing and involuntary ( see People v. VanDeViver, 56 A.D.3d 1118, 867 N.Y.S.2d 586, lv. denied 11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450, rearg. denied 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099), and the fact that defendant was not informed that he could challenge County Court's suppression ruling on appeal did not render the plea involuntary ( see generally People v. Kemp, 94 N.Y.2d 831, 703 N.Y.S.2d 59, 724 N.E.2d 754). In any event, defendant's challenge to the court's suppression ruling is encompassed by his waiver of the right to appeal ( see id. at 833, 703 N.Y.S.2d 59, 724 N.E.2d 754). Additionally, that challenge is without merit ( see People v. Steward, 88 N.Y.2d 496,...