People v. Tapia
| Decision Date | 02 February 2018 |
| Docket Number | KA 14–00995,90 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Nelson TAPIA, Defendant–Appellant. |
| Court | New York Supreme Court — Appellate Division |
158 A.D.3d 1079
70 N.Y.S.3d 309
The PEOPLE of the State of New York, Respondent,
v.
Nelson TAPIA, Defendant–Appellant.
90
KA 14–00995
Supreme Court, Appellate Division, Fourth Department, New York.
Entered: February 2, 2018
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR DEFENDANT–APPELLANT.
BARRY PORSCH, DISTRICT ATTORNEY, WATERLOO, FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of promoting prison contraband in the first degree ( Penal Law § 205.25[2] ). Contrary to defendant's contention, the record establishes that County Court "conducted an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice" ( People v. Burtes, 151 A.D.3d 1806, 1806, 58 N.Y.S.3d 766 [4th Dept. 2017], lv denied 30 N.Y.3d 978, 67 N.Y.S.3d 580, 89 N.E.3d 1260 [2017] [internal quotation marks omitted]; see People v. Hand, 147 A.D.3d 1326, 1326, 45 N.Y.S.3d 832 [4th Dept. 2017], lv denied 29 N.Y.3d 998, 57 N.Y.S.3d 719, 80 N.E.3d 412 [2017] ). Contrary to defendant's further contention, the court " ‘was not required to specify during the colloquy which specific claims survive the waiver of the right to appeal’ " ( Burtes, 151 A.D.3d at 1806–1807, 58 N.Y.S.3d 766 ).
Defendant's contention that "his plea was not knowing, intelligent and voluntary ‘because he did not recite the underlying facts of the crime but simply replied to [the court's] questions with monosyllabic responses is actually a challenge to the factual sufficiency of the plea allocution,’ which is encompassed by the valid waiver of the right to appeal" ( People v. Simcoe, 74 A.D.3d 1858, 1859, 902 N.Y.S.2d 489 [4th Dept. 2010], lv denied 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060 [2010] ; see Burtes, 151 A.D.3d at 1807, 58 N.Y.S.3d 766 ).
In addition, defendant contends that his plea was involuntary because he negated essential elements of the...
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