SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
859
KA 14-00978
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
RICHARD A. BIZARDI, DEFENDANT-APPELLANT.
WILLIAMS, HEINL, MOODY & BUSCHMAN, P.C., AUBURN (RYAN JAMES MULDOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (JEFFREY A. DOMACHOWSKI OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered April 22, 2014. 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, we conclude that he knowingly, intelligently, and
voluntarily waived his right to appeal as a condition of the plea (see
generally People v Lopez, 6 NY3d 248, 256). 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 Burts, 114 AD3d 1272, 1273, lv denied
22 NY3d 1197 [internal quotation marks omitted]). Contrary to
defendant’s contention, the court “was not required to specify during
the colloquy which specific claims survive the waiver of the right to
appeal” (People v Rodriguez, 93 AD3d 1334, 1335, lv denied 19 NY3d
966). Defendant’s contention that the court erred in denying his
request for a Wade hearing is encompassed by the valid waiver (see
People v Jenkins, 117 AD3d 1528, 1529, lv denied 23 NY3d 1063).
Although defendant’s contention that his guilty plea was not
knowing, voluntary, and intelligent survives his valid waiver of the
right to appeal, defendant failed to preserve that contention for our
review by moving to withdraw his plea or to vacate the judgment of
conviction (see People v Robinson, 112 AD3d 1349, 1349, lv denied 23
-2- 859
KA 14-00978
NY3d 1042), and this case does not fall within the rare exception to
the preservation requirement (see People v Lopez, 71 NY2d 662, 666).
Entered: July 2, 2015 Frances E. Cafarell
Clerk of the Court