SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1099
KA 12-00107
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
DAVID COLON, DEFENDANT-APPELLANT.
FRANK J. NEBUSH, JR., PUBLIC DEFENDER, UTICA (PATRICK J. MARTHAGE OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered September 13, 2011. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the first
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal contempt in the first degree (Penal Law §
215.51 [b] [iii]), defendant challenges the validity of his waiver of
the right to appeal. We conclude that “County Court did not
improperly conflate the waiver of the right to appeal with those
rights automatically forfeited by a guilty plea” (People v Bentley, 63
AD3d 1624, 1625, lv denied 13 NY3d 742; see People v Bradshaw, 18 NY3d
257, 264; People v Lopez, 6 NY3d 248, 256), and that the record
establishes that the 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 Burt, 101 AD3d 1729, 1730, lv denied 20
NY3d 1060 [internal quotation marks omitted]). Defendant’s valid
waiver encompasses his challenge to the severity of the sentence (see
generally People v Lococo, 92 NY2d 825, 827).
Although defendant’s contentions that his plea was coerced and
that he is innocent survive the valid waiver of the right to appeal
(see People v Merritt, 115 AD3d 1250, 1251; People v Lewandowski, 82
AD3d 1602, 1602), we conclude that those contentions are without
merit. “The court was presented with a credibility determination when
defendant moved to withdraw his plea and advanced his belated claims
of innocence and coercion, and it did not abuse its discretion in
discrediting those claims” (People v Sparcino, 78 AD3d 1508, 1509, lv
denied 16 NY3d 746). Indeed, we conclude that “defendant’s assertions
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KA 12-00107
of innocence and coercion were conclusory and belied by defendant’s
statements during the plea colloquy” (People v Wright, 66 AD3d 1334,
1334, lv denied 13 NY3d 912; see People v Allen, 99 AD3d 1252, 1252).
Entered: November 14, 2014 Frances E. Cafarell
Clerk of the Court