People
v.
Smrek

Not overruled or negatively treated on appealinfoCoverage
Supreme Court, Appellate Division, Fourth Department, New York.Jun 14, 2013
966 N.Y.S.2d 732 (N.Y. App. Div. 2013)
966 N.Y.S.2d 732107 A.D.3d 16042013 N.Y. Slip Op. 4527

2013-06-14

The PEOPLE of the State of New York, Respondent, v. Daniel S. SMREK, Defendant–Appellant. (Appeal No. 1.)

Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), rendered December 20, 2011. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated, a class D felony. Carr Saglimben LLP, Olean (Jay D. Carr of Counsel), for Defendant–Appellant. Lori P. Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.


Appeal from a judgment of the Cattaraugus County Court (Larry M. Himelein, J.), rendered December 20, 2011. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated, a class D felony.
Carr Saglimben LLP, Olean (Jay D. Carr of Counsel), for Defendant–Appellant. Lori P. Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.
MEMORANDUM:


In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of felony driving while intoxicated (Vehicle and Traffic Law §§ 1192[3]; 1193[1][c][ii] ), and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of felony driving while intoxicated (§§ 1192[3]; 1193[1][c][ii] ), and aggravated unlicensed operation of a motor vehicle in the second degree (§ 511[2] ). Contrary to defendant's contention in each appeal, the record establishes that he knowingly, voluntarily and intelligently waived the right to appeal ( see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Defendant's valid waiver forecloses any challenge by defendant to the severity of the sentence in each appeal ( see id. at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;see generally People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416;People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, and WHALEN, JJ., concur.