People v. Lopez

• Decision Date: 05 July 2012
• Citation: 948 N.Y.S.2d 174,2012 N.Y. Slip Op. 05347,97 A.D.3d 853
• Parties: The PEOPLE of the State of New York, Respondent, v. Angela LOPEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 853
948 N.Y.S.2d 174
2012 N.Y. Slip Op. 05347

The PEOPLE of the State of New York, Respondent,
v.
Angela LOPEZ, Appellant.

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

July 5, 2012.

Cynthia Feathers, Glens Falls, for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: MERCURE, J.P., ROSE, KAVANAGH, McCARTHY and EGAN JR., JJ.

MERCURE, J.P.

[97 A.D.3d 853]Appeal from a judgment of the Supreme Court (Lamont, J.), rendered August 5, 2011 in Albany County, convicting defendant upon her plea of guilty of the crimes of welfare fraud in the second degree and grand larceny in the third degree.

In satisfaction of a 19–count indictment and uncharged state tax crimes, defendant pleaded guilty to welfare fraud in the second degree and grand larceny in the third degree, and waived her right to appeal her conviction and sentence. She was sentenced, according to the plea agreement, to two concurrent prison terms of 2 to 6 years and ordered to pay restitution and surcharges totalling approximately $100,000. She now appeals, arguing that her appeal waiver is invalid and that her sentence is harsh and excessive.

We affirm. During the plea colloquy, Supreme Court fully and separately explained to defendant the nature of the appeal rights she was waiving and the consequences of doing so. Defendant, after conferring with counsel, orally confirmed that she understood and agreed to waive those rights, and also executed a written appeal waiver that acknowledged her understanding that the right to appeal is not automatically forfeited upon a plea of guilty and that she had consulted with her attorney concerning the legal ramifications of her waiver. Under these circumstances, we find that defendant validly waived her right to appeal her conviction and sentence ( see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006];People v. Lewis, 70 A.D.3d 1068, 1068, 897 N.Y.S.2d 261 [2010],lv. denied15 N.Y.3d 752, 906 N.Y.S.2d 825, 933 N.E.2d 224 [2010];cf. People v. Maracle, –––N.Y.3d ––––, ––––, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [2012];

[948 N.Y.S.2d 175]

People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ), thereby precluding review [97 A.D.3d 854]of her claim that her sentence is harsh and excessive ( see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];People v. Phelan, 77 A.D.3d 987, 988, 909 N.Y.S.2d 159 [2010],lv....