People v. McCray

• Decision Date: 06 February 2013
• Citation: 2013 N.Y. Slip Op. 00769,959 N.Y.S.2d 262,103 A.D.3d 666
• Parties: The PEOPLE, etc., respondent, v. Darnell McCRAY, appellant.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 666
959 N.Y.S.2d 262
2013 N.Y. Slip Op. 00769

The PEOPLE, etc., respondent,
v.
Darnell McCRAY, appellant.

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

Feb. 6, 2013.

Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Lauren Tan of counsel), for respondent.

RANDALL T. ENG, P.J., PETER B. SKELOS, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

[103 A.D.3d 667]Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Suffolk County (Hudson, J.), imposed October 19, 2011, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

“[B]efore a waiver of the right to appeal may be enforced, the record must be examined to ensure that the waiver was voluntary, knowing and intelligent” ( People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108). The defendant voluntarily, knowingly, and intelligently waived his right to appeal when he pleaded guilty, as he signed a written waiver of that right and orally acknowledged to the court that he understood the written waiver.

Furthermore, there is no ambiguity on the record to suggest that the waiver was ineffective. Therefore, because the defendant's valid waiver of his right to appeal encompasses the waiver of the right to invoke the Appellate Division's interest of

[959 N.Y.S.2d 263]

justice jurisdiction to modify sentences, review of the defendant's contention that the sentence imposed was excessive is precluded ( see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145).