People v. Nicometo

• Decision Date: 18 March 2016
• Citation: People v. Nicometo, 137 A.D.3d 1619, 26 N.Y.S.3d 916(Mem) (N.Y. App. Div. 2016)
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael A. NICOMETO, also known as Michael Nicometo, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1619

26 N.Y.S.3d 916 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Michael A. NICOMETO, also known as Michael Nicometo, Defendant–Appellant.

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

March 18, 2016.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant.

Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.

MEMORANDUM:

On appeal from a judgment convicting him upon his plea of guilty of burglary in the third degree (Penal Law § 140.20 ), 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 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 ). Contrary to defendant's further contention, it is well settled that a "waiver of the right to appeal [is] not rendered invalid based on the court's failure to require [the] defendant to articulate the waiver in his [or her] own words" (People v. Dozier, 59 A.D.3d 987, 987, 872 N.Y.S.2d 317, lv. denied 12 N.Y.3d 815, 881 N.Y.S.2d 23, 908 N.E.2d 931 ). Defendant's valid waiver of the right to appeal forecloses his challenge to the severity of the bargained-for sentence (see Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see also People v. Vincent, 114 A.D.3d 1171, 1171, 979 N.Y.S.2d 905, lv. denied 23 N.Y.3d 969, 988 N.Y.S.2d 576, 11 N.E.3d 726 ; People v. Williams, 49 A.D.3d 1280, 1280, 852 N.Y.S.2d 887 ; see generally People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416 ).

Defendant further contends that the court erred in issuing an order of protection in favor of his former wife as a condition of the sentence. Inasmuch as the "order[ ] of protection was first disclosed at sentencing after defendant executed a waiver of appeal at the plea proceedings, [defendant's contention] survives the appeal waiver" (People v. Gardner, 129 A.D.3d 1386, 1387, 12 N.Y.S.3d 353 ; see also People v. DeFazio, 105 A.D.3d 1438, 1439, 963 N.Y.S.2d 497, lv. denied 21 N.Y.3d 1015, 971 N.Y.S.2d 497, 994 N.E.2d 393 ; People v. Smith, 83 A.D.3d 1213, 1214, 920 N.Y.S.2d 736 ). Nevertheless, we conclude that the contention is without merit (see generally People v. Victor, 20 A.D.3d 927, 928, 799 N.Y.S.2d 843, lv. denied 5 N.Y.3d 833, 804 N.Y.S.2d 48, 837 N.E.2d 747, reconsideration denied5 N.Y.3d 885, 808 N.Y.S.2d 588, 842 N.E.2d 486 ).

It...