People v. Fox

• Decision Date: 07 June 2019
• Docket Number: 598,KA 18–00525
• Parties: The PEOPLE of the State of New York, Respondent, v. Raymond O. FOX, Jr., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 1680
99 N.Y.S.3d 906 (Mem)

The PEOPLE of the State of New York, Respondent,
v.
Raymond O. FOX, Jr., Defendant–Appellant.

598
KA 18–00525

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

Entered: June 7, 2019

DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT–APPELLANT.

CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

173 A.D.3d 1681

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

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of failure to register and/or verify his status as a sex offender by failing to personally appear for an updated photograph ( Correction Law §§ 168–f [2 ][c–1]; 168–t). While we agree with defendant that the written waiver of the right to appeal does not establish a valid waiver because it was not executed until sentencing (see People v. Brown , 148 A.D.3d 1562, 1562–1563, 48 N.Y.S.3d 865 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ; People v. Sims , 129 A.D.3d 1509, 1510, 12 N.Y.S.3d 682 [4th Dept. 2015], lv denied 26 N.Y.3d 935, 17 N.Y.S.3d 98, 38 N.E.3d 844 [2015] ; People v. Pieper , 104 A.D.3d 1225, 1225, 960 N.Y.S.2d 677 [4th Dept. 2013] ), we nonetheless conclude that defendant validly waived his right to appeal inasmuch as the record of the plea proceeding establishes that County Court engaged defendant in "an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Suttles , 107 A.D.3d 1467, 1468, 965 N.Y.S.2d 904 [4th Dept. 2013], lv. denied 21 N.Y.3d 1046, 972 N.Y.S.2d 543, 995 N.E.2d 859 [2013] [internal quotation marks omitted]; see People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). The court "made clear that the waiver of the right to appeal was a condition of [the] plea, not a consequence thereof, and the record reflects that defendant understood that the waiver of the right to appeal was ‘separate and distinct from those rights automatically forfeited upon a plea of guilty’ " ( People v. Graham , 77 A.D.3d 1439, 1439, 908 N.Y.S.2d 490 [4th Dept. 2010], lv denied 15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813 [2010], quoting Lopez...