People v. Sapp

• Docket Number: 782,KA 21-00609
• Decision Date: 10 November 2022
• Citation: 210 A.D.3d 1431,176 N.Y.S.3d 525 (Mem)
• Parties: The PEOPLE of the State of New York, Respondent, v. Freddy L. SAPP, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

210 A.D.3d 1431

176 N.Y.S.3d 525 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Freddy L. SAPP, Defendant-Appellant.

782

KA 21-00609

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

Entered: November 10, 2022

LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT-APPELLANT.

JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.

PRESENT: LINDLEY, J.P., NEMOYER, WINSLOW, BANNISTER, AND MONTOUR, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the second degree ( Penal Law § 120.05 [1] ). We reject defendant's contention that he did not validly waive the right to appeal. Contrary to defendant's contention, County Court's colloquy established that the right to appeal was "separate and distinct" from those rights automatically forfeited by pleading guilty ( People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Cromie , 187 A.D.3d 1659, 1659, 133 N.Y.S.3d 167 [4th Dept. 2020], lv denied 36 N.Y.3d 971, 138 N.Y.S.3d 488, 162 N.E.3d 717 [2020] ) and did not "utterly mischaracterize[ ] the nature of the right ... defendant was being asked to cede" ( People v. Thomas , 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] [internal quotation marks omitted]; see Cromie , 187 A.D.3d at 1659, 133 N.Y.S.3d 167 ). Defendant's valid waiver of the right to appeal encompasses his challenge to the severity of the sentence (see Lopez , 6 N.Y.3d at 255-256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; Cromie , 187 A.D.3d at 1660, 133 N.Y.S.3d 167 ).

Although defendant's further contention that his plea was not knowingly, voluntarily, and intelligently entered survives his valid waiver of the right to appeal (see People v. Woods , 126 A.D.3d 1543, 1543, 6 N.Y.S.3d 857 [4th Dept. 2015], lv denied 27 N.Y.3d 970, 36 N.Y.S.3d 631, 56 N.E.3d 911 [2016] ), defendant failed to preserve that contention for our review by moving to withdraw his plea or to vacate the judgment of conviction (see People v. Guantero , 100 A.D.3d 1386, 1387, 953 N.Y.S.2d 438 [4th Dept. 2012], lv denied 21 N.Y.3d 1004, 971 N.Y.S.2d 256, 993 N.E.2d 1278 [2013] ).