People v. Walker

• Decision Date: 09 June 2017
• Citation: 57 N.Y.S.3d 806,151 A.D.3d 1730
• Parties: The PEOPLE of the State of New York, Respondent, v. Ronald WALKER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1730
57 N.Y.S.3d 806

The PEOPLE of the State of New York, Respondent,
v.
Ronald WALKER, Defendant–Appellant.

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

June 9, 2017.

57 N.Y.S.3d 807

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant.

John J. Flynn, District Attorney, Buffalo (Ashley R. Lowry of Counsel), for Respondent.

PRESENT: WHALEN, P.J., SMITH, DeJOSEPH, TROUTMAN, AND SCUDDER, JJ.

MEMORANDUM:

Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the second degree ( Penal Law § 140.25[2] ). The conviction arises from an incident in which defendant broke into the home of his former girlfriend in violation of a stay-away order of protection and allegedly threatened to kill her while armed with a kitchen knife.

Contrary to defendant's contention, the record establishes that he made a knowing, intelligent, and voluntary waiver of his right to appeal (see People v. Harris [Appeal No. 4], 147 A.D.3d 1375, 1376, 47 N.Y.S.3d 540 ; People v. Johnson, 125 A.D.3d 1419, 1419–1420, 3 N.Y.S.3d 225, lv. denied 26 N.Y.3d 1089, 23 N.Y.S.3d 646, 44 N.E.3d 944 ; see generally People v. Sanders, 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ). The fact that Supreme Court did not specifically explain that even a legal sentence may be challenged on appeal does not impair the scope or validity of the waiver, inasmuch as there is "no requirement that [a] defendant expressly waive every potential claim or defense ... in order to produce a valid, unrestricted waiver of the right to appeal" ( People v. Corbin, 121 A.D.3d 803, 804, 993 N.Y.S.2d 746 ; see People v. Muniz, 91 N.Y.2d 570, 574–575, 673 N.Y.S.2d 358, 696 N.E.2d 182 ).

Although the presentence report reflects that defendant has cognitive limitations, there is no indication in the record that he "was uninformed, confused or incompetent when he waived his right to appeal" ( 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 [internal quotation marks omitted]; see People v. Scott, 144 A.D.3d 1597, 1598, 40 N.Y.S.3d 689, lv. denied 28 N.Y.3d 1150, 52 N.Y.S.3d 302, 74 N.E.3d 687 ; see also People v. Andrews, 274 A.D.2d 670, 670, 711 N.Y.S.2d 797, lv. denied 95 N.Y.2d 960, 722 N.Y.S.2d 477, 745 N.E.2d 397 ), and we reject his contention that the explanations of the waiver provided to him were themselves inconsistent or confusing (see People v. Ramos, 135 A.D.3d 1234, 1235, 23 N.Y.S.3d 479, lv. denied 28 N.Y.3d 935, 40 N.Y.S.3d 363, 63 N.E.3d 83 ; People v. Reinhardt, 82 A.D.3d 1592, 1593, 919 N.Y.S.2d 412, lv. denied 17 N.Y.3d 799, 929 N.Y.S.2d 107, 952 N.E.2d 1102 ; see also People v. Yaw, 120 A.D.3d 1447, 1448–1449, 991 N.Y.S.2d 677, lv. denied 24 N.Y.3d 1005, 997 N.Y.S.2d 123, 21 N.E.3d 575 ).

Defendant's valid waiver of his right to appeal with respect to both his conviction and sentence forecloses his challenge to the severity of the sentence (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Carr, 147 A.D.3d 1506, 1506, 47 N.Y.S.3d 561 ). In addition, given that defendant expressly acknowledged that his waiver of the right to appeal would extend to "any orders of protection that are issued as to form, duration, or content," we conclude that the waiver encompasses his contention that the no-contact order of protection issued in favor of the victim is "unduly stringent" (see

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