Opinion
1223 KA 13-01583
11-21-2014
The PEOPLE of The State of New York, Respondent, v. Francis S. SMITH, also known as Francis Smith, Defendant–Appellant. (Appeal No. 1.).
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS AND VALENTINO, JJ.
Opinion
MEMORANDUM:In appeal No. 1 and appeal No. 2, defendant appeals from separate judgments convicting him upon his pleas of guilty of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25[2] ). Both pleas were entered during one plea proceeding, during which defendant waived his right to appeal. We reject defendant's challenge in each appeal to the validity of the waiver of the right to appeal. “The written waiver of the right to appeal, together with defendant's responses during the plea proceeding, establish that the waiver was voluntarily, knowingly, and intelligently entered” (People v. Griner, 50 A.D.3d 1557, 1558, 855 N.Y.S.2d 800, lv. denied 11 N.Y.3d 737, 864 N.Y.S.2d 395, 894 N.E.2d 659 ; see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ). The valid waiver of the right to appeal encompasses defendant's challenge in each appeal to the severity of the sentence, including the period of postrelease supervision (see People v. Raynor, 107 A.D.3d 1567, 1568, 966 N.Y.S.2d 716, lv. denied 22 N.Y.3d 1090, 981 N.Y.S.2d 675, 4 N.E.3d 977 ; People v. McMullen, 94 A.D.3d 1434, 1434–1435, 942 N.Y.S.2d 836, lv. denied 19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 ; People v. Laskowski, 46 A.D.3d 1383, 1384, 847 N.Y.S.2d 883 ). Although defendant's challenge in each appeal to the validity of the orders of protection issued by County Court survives his waiver of the right to appeal (see People v. Smith, 83 A.D.3d 1213, 1214, 920 N.Y.S.2d 736 ; People v. Victor, 20 A.D.3d 927, 928, 799 N.Y.S.2d 843, lv. denied 5 N.Y.3d 833, 804 N.Y.S.2d 48, 837 N.E.2d 747, reconsideration denied 5 N.Y.3d 885, 808 N.Y.S.2d 588, 842 N.E.2d 486 ), he failed to preserve those challenges for our review inasmuch as he did not object to the orders of protection either during the plea proceeding or at sentencing (see People v. Russell, 120 A.D.3d 1594, 1594–1595, 992 N.Y.S.2d 822 ; Smith, 83 A.D.3d at 1213–1214, 920 N.Y.S.2d 736 ). Indeed, defense counsel specifically advised the court that defendant had no objection to entry of the orders at issue. We therefore decline to exercise our power to review defendant's challenges as a matter of discretion in the interest of justice (see CPL 470.15[3][c] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.