People v. Graham

• Decision Date: 10 June 2016
• Citation: 31 N.Y.S.3d 730,2016 N.Y. Slip Op. 04591,140 A.D.3d 1686
• Parties: The PEOPLE of the State of New York, Respondent, v. Tyrone L. GRAHAM, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1686

31 N.Y.S.3d 730

2016 N.Y. Slip Op. 04591

The PEOPLE of the State of New York, Respondent,

v.Tyrone L. GRAHAM, Defendant–Appellant.

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

June 10, 2016.

Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of Counsel), for Respondent.

PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND SCUDDER, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03[3] ). Contrary to defendant's contention, the record establishes that he knowingly, voluntarily and intelligently waived his right to appeal (see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). We agree with defendant that County Court's statement to him that, “ ‘by pleading guilty, [he would] give up the right to allege [that] the police unlawfully collected evidence or did anything else illegal’ was misleading to the extent that it improperly implied that defendant's right to challenge the suppression ruling on appeal was automatically extinguished upon the entry of his guilty plea” (People v. Braxton, 129 A.D.3d 1674, 1675, 10 N.Y.S.3d 791, lv. denied 26 N.Y.3d 965, 18 N.Y.S.3d 601, 40 N.E.3d 579 ; see People v. Weinstock, 129 A.D.3d 1663, 1663, 11 N.Y.S.3d 782, lv. denied 26 N.Y.3d 1012, 20 N.Y.S.3d 552, 42 N.E.3d 222 ). We conclude, however, that the court's “plea colloquy, together with the written waiver of the right to appeal, adequately apprised defendant that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (Braxton, 129 A.D.3d at 1675, 10 N.Y.S.3d 791 [internal quotation marks omitted] ). Defendant's valid waiver of the right to appeal encompasses his contention that the court erred in refusing to suppress physical evidence (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ; Weinstock, 129 A.D.3d at 1663, 11 N.Y.S.3d 782 ).

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