| People v Garcia |
| 2017 NY Slip Op 07826 |
| Decided on November 9, 2017 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on November 9, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
1178 KA 16-01551
v
LUIS M. GARCIA, DEFENDANT-APPELLANT.
DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF COUNSEL), FOR DEFENDANT-APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), rendered August 4, 2016. The judgment convicted defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third 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 criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]). Contrary to defendant's contention and the "concession" of the People, the record establishes that defendant validly waived his right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]). Upon our review of the colloquy, we conclude that Supreme Court "did not indicate to defendant that he automatically forfeited his right to appeal upon pleading guilty" (People v Tabb, 81 AD3d 1322, 1322 [4th Dept 2011], lv denied 16 NY3d 900 [2011]; cf. People v Moyett, 7 NY3d 892, 892-893 [2006]). "Rather, the court engaged in a fuller colloquy, describing the nature of the right being waived without lumping that right into the panoply of trial rights automatically forfeited upon pleading guilty' " (Tabb, 81 AD3d at 1322, quoting Lopez, 6 NY3d at 257). Defendant's valid waiver of the right to appeal, which specifically included a waiver of the right to challenge the severity of the sentence, encompasses his contention that the sentence imposed is unduly harsh and severe (see Lopez, 6 NY3d at 255-256; People v Hidalgo, 91 NY2d 733, 737 [1998]; cf. People v Maracle, 19 NY3d 925, 928 [2012]).
Entered: November 9, 2017
Mark W. Bennett
Clerk of the Court