RIPLEY, CHRISTOPHER, PEOPLE v ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
531
KA 10-01482
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
CHRISTOPHER RIPLEY, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHELLE L.
CIANCIOSA OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered July 2, 2010. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary in the
second 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 burglary in the second degree
(Penal Law §§ 110.00, 140.25 [2]). We reject defendant’s contention
that he did not knowingly, voluntarily and intelligently waive his
right to appeal. Contrary to defendant’s contention, Supreme 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”
(People v Wright, 66 AD3d 1334, lv denied 13 NY3d 912 [internal
quotation marks omitted]). Further, the record as a whole establishes
“that the defendant understood that the right to appeal is separate
and distinct from those rights automatically forfeited upon a plea of
guilty” (People v Lopez, 6 NY3d 248, 256; see People v Korber, 89 AD3d
1543, 1543). Contrary to defendant’s further contention, a “waiver of
the right to appeal [is] not rendered invalid based on the court’s
failure to require [the] defendant to articulate the waiver in his [or
her] own words” (People v Dozier, 59 AD3d 987, 987, lv denied 12 NY3d
815; see People v Thompson, 70 AD3d 1319, 1319-1320, lv denied 14 NY3d
845, 15 NY3d 810; People v Ludlow, 42 AD3d 941, 942). In addition,
defendant’s waiver of the right to appeal is not invalid on the ground
that the court did not specifically advise defendant that his general
waiver of the right to appeal encompassed any challenge to the
severity of the sentence (see People v Hidalgo, 91 NY2d 733, 736-737;
see generally People v Eron, 79 AD3d 1774, 1775; People v Tantao, 41
AD3d 1274, 1275, lv denied 9 NY3d 882).
-2- 531
KA 10-01482
Defendant’s contention that the court abused its discretion in
denying his request for youthful offender status is encompassed by his
valid waiver of the right to appeal (see People v Farewell, 90 AD3d
1502, 1502; People v Harris, 77 AD3d 1326, lv denied 16 NY3d 743).
Entered: April 27, 2012 Frances E. Cafarell
Clerk of the Court