SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
788
KA 13-00201
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
RICHARD KESICK, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO
OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered December 12, 2012. The judgment convicted
defendant, upon his plea of guilty, of grand larceny in the third
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 grand larceny in the third degree (Penal Law §
155.35 [1]), defendant contends that his waiver of the right to appeal
is invalid. We reject that contention. County Court “engage[d] the
defendant in an adequate colloquy to ensure that the waiver of the
right to appeal was a knowing and voluntary choice . . . , and the
record establishes that defendant understood that the right to appeal
is separate and distinct from those rights automatically forfeited
upon a plea of guilty” (People v Blurts, 114 AD3d 1272, 1273, lv
denied 22 NY3d 1197 [internal quotation marks omitted]; see People v
Lopez, 6 NY3d 248, 256; People v Hicks, 89 AD3d 1480, 1480-1481, lv
denied 18 NY3d 924). We thus conclude that “[the plea colloquy and
the written waiver of the right to appeal signed [and acknowledged in
court] by defendant demonstrate that [he] knowingly, intelligently and
voluntarily waived the right to appeal” (People v Caleche, 94 AD3d
1418, 1419, lv denied 19 NY3d 959; see People v Pulley, 107 AD3d 1560,
1561, lv denied 21 NY3d 1076; People v Ramsey, 105 AD3d 1448, 1449, lv
denied 21 NY3d 1019).
Contrary to defendant’s further contention, the valid waiver of
the right to appeal encompasses his challenge to the severity of the
sentence, including the imposition and amount of restitution, the
terms of which were made a part of the plea agreement (see Lopez, 6
NY3d at 255; People v Graves, 96 AD3d 1466, 1466, lv denied 19 NY3d
-2- 788
KA 13-00201
1026; People v Butler, 81 AD3d 1465, 1465, lv denied 17 NY3d 805).
Entered: July 3, 2014 Frances E. Cafarell
Clerk of the Court