SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
331
KA 10-00726
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ROBERT R. DUNHAM, DEFENDANT-APPELLANT.
DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.
DONALD H. DODD, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oswego County Court (Spencer J.
Ludington, A.J.), rendered July 15, 2009. The judgment convicted
defendant, upon his plea of guilty, of attempted forgery in the second
degree and grand larceny in the fourth degree.
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 attempted forgery in the second degree
(Penal Law §§ 110.00, 170.10 [1]) and grand larceny in the fourth
degree (§ 155.30 [8]). We reject defendant’s contention that his
waiver of the right to appeal was not knowing and voluntary. Although
“a trial court need not engage in any particular litany when apprising
a defendant pleading guilty of the individual rights abandoned, it
must make certain that a defendant’s understanding of the terms and
conditions of a plea agreement is evident on the face of the record”
(People v Lopez, 6 NY3d 248, 256; see People v McDonald, 270 AD2d 955,
lv denied 95 NY2d 800). “The record must establish that the defendant
understood that the right to appeal is separate and distinct from
those rights automatically forfeited upon a plea of guilty” (Lopez, 6
NY3d at 256). Here, the record establishes that defendant indicated
that he had spoken with defense counsel and understood that he was
waiving his right to appeal as a condition of the plea. Further,
defendant’s monosyllabic affirmative responses to questioning by
County Court do not render his plea unknowing and involuntary (see
People v VanDeViver, 56 AD3d 1118, lv denied 11 NY3d 931, rearg denied
12 NY3d 788), and the fact that defendant was not informed that he
could challenge County Court’s suppression ruling on appeal did not
render the plea involuntary (see generally People v Kemp, 94 NY2d
831). In any event, defendant’s challenge to the court’s suppression
ruling is encompassed by his waiver of the right to appeal (see id. at
833). Additionally, that challenge is without merit (see People v
-2- 331
KA 10-00726
Steward, 88 NY2d 496, 501-502, rearg denied 88 NY2d 1018; People v
Scaccia, 6 AD3d 1105, 1105-1106, lv denied 3 NY3d 681). Although
defendant’s contention that his plea was involuntary survives his
waiver of the right to appeal, defendant failed to preserve that
contention by moving to withdraw the plea or set aside the conviction
(see People v Busch, 60 AD3d 1393, lv denied 12 NY3d 913), and we
decline to exercise our power to review it as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]). Finally,
although defendant’s contention that the court failed to apprehend the
extent of its sentencing discretion survives his waiver of the right
to appeal and does not require preservation (see People v Schafer, 19
AD3d 1133), that contention is without merit. The sentence imposed
was in accordance with the plea agreement, and there is no support for
defendant’s contention in the record before us.
Entered: April 1, 2011 Patricia L. Morgan
Clerk of the Court