People v. Johnson, 1155 KA 11-02314

• Decision Date: 14 November 2014
• Docket Number: 1155 KA 11-02314
• Citation: 2014 N.Y. Slip Op. 07860,122 A.D.3d 1324,995 N.Y.S.2d 888
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent v. Rashod JOHNSON, Defendant–Appellant.

122 A.D.3d 1324

995 N.Y.S.2d 888

2014 N.Y. Slip Op. 07860

The PEOPLE of the State of New York, Respondent

v.Rashod JOHNSON, Defendant–Appellant.

1155 KA 11-02314

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

Nov. 14, 2014.

Frank J. Nebush, Jr., Public Defender, Utica (David A. Cooke of Counsel), for Defendant–Appellant.

Scott D. Mcnamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN AND DeJOSEPH, JJ.

OpinionMEMORANDUM:

On appeal from a judgment convicting him upon his plea of guilty of rape in the first degree (Penal Law § 130.35[1] ), defendant contends that his waiver of the right to appeal is invalid because it was not knowingly, voluntarily, and intelligently entered. We reject that contention. The record 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. Ripley, 94 A.D.3d 1554, 1554, 942 N.Y.S.2d 919, lv. denied 19 N.Y.3d 976, 950 N.Y.S.2d 359, 973 N.E.2d 769 ), and “ that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Korber, 89 A.D.3d 1543, 1543, 932 N.Y.S.2d 780, lv. denied 19 N.Y.3d 864, 947 N.Y.S.2d 413, 970 N.E.2d 436 ). We conclude that defendant's “ responses during the plea colloquy and his execution of a written waiver of the right to appeal establish that he intelligently, knowingly, and voluntarily waived his right to appeal” (People v. Rumsey, 105 A.D.3d 1448, 1449, 963 N.Y.S.2d 909, lv. denied 21 N.Y.3d 1019, 971 N.Y.S.2d 501, 994 N.E.2d 397 ; see generally Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), and that valid waiver forecloses any challenge by defendant to the severity of his bargained-for sentence (see Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

We reject the further contention of defendant that his plea was not knowingly, intelligently, and voluntarily entered and thus that the court erred in denying his motion to withdraw his plea. “Permission to withdraw a guilty plea rests solely within the court's discretion ..., and refusal to permit withdrawal does not constitute an abuse of discretion unless there is some evidence of innocence, fraud, or mistake in inducing the plea” (People v. Robertson, 255 A.D.2d 968, 968, 681 N.Y.S.2d 919, lv. denied 92 N.Y.2d 1053, 685 N.Y.S.2d 431, 708 N.E.2d 188 ; see People v. Zimmerman, 100 A.D.3d 1360, 1361, 953 N.Y.S.2d 427, lv. denied 20 N.Y.3d 1015, 960 N.Y.S.2d 359, 984 N.E.2d 334 ). We perceive no abuse of discretion here. Defendant's claims that he did not “understand this legal proceeding stuff” and that he “didn't really want to take this plea” are belied by his statements during the plea proceeding (see People v. Leach, 119 A.D.3d 1429, 1429, 989 N.Y.S.2d 761 ; People v. Lewicki, 118 A.D.3d 1328, 1329, 987 N.Y.S.2d 755, lv. denied 23 N.Y.3d 1064, 994 N.Y.S.2d 323, 18...