People v. Rocchino

• Decision Date: 13 September 2017
• Citation: 153 A.D.3d 1284,59 N.Y.S.3d 715 (Mem)
• Parties: The PEOPLE, etc., respondent, v. Kerwin ROCCHINO, appellant.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 1284

59 N.Y.S.3d 715 (Mem)

The PEOPLE, etc., respondent,

v.Kerwin ROCCHINO, appellant.

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

Sept. 13, 2017.

Lynn W.L. Fahey, New York, NY, for appellant.

Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel), for respondent.

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Richmond County (Collini, J.), imposed May 14, 2014, upon his plea of guilty, on the ground that the sentence was excessive.

ORDERED that the sentence is affirmed.

A waiver of the right to appeal "is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297 ). Although the Court of Appeals has "repeatedly observed that there is no mandatory litany that must be used in order to obtain a valid waiver of appellate rights" ( People v. Johnson, 14 N.Y.3d 483, 486, 903 N.Y.S.2d 299, 929 N.E.2d 361 ), "[t]he best way to ensure that the record reflects that the right is known and intentionally relinquished by the defendant is to fully explain to the defendant, on the record, the nature of the right to appeal and the consequences of waiving it" ( People v. Brown, 122 A.D.3d at 142, 992 N.Y.S.2d 297 ).

Here, the record of the plea proceeding demonstrates that the defendant received an explanation of the nature of the right to appeal and the consequences of waiving that right (see People v. Stiles, 143 A.D.3d 747, 747, 38 N.Y.S.3d 436 ; People v. Romero–Flores, 128 A.D.3d 1102, 1102, 8 N.Y.S.3d 606 ; People v. McRae, 123 A.D.3d 848, 848–849, 996 N.Y.S.2d 531 ; People v. Brown, 122 A.D.3d at 144, 992 N.Y.S.2d 297 ). On the record presented, we conclude that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see generally People v. Bradshaw, 18 N.Y.3d at 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Hidalgo, 91 N.Y.2d 733, 735, 675 N.Y.S.2d 327, 698 N.E.2d 46 ). Accordingly, the defendant's valid waiver of his right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Hardy, ...