         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
72
KA 09-01374
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SAMUEL T. TOLIVER, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SAMUEL T. TOLIVER, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHELLE L.
CIANCIOSA OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Shirley
Troutman, J.), rendered June 25, 2009. The judgment convicted
defendant, upon his plea of guilty, of assault in the first degree.

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

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of assault in the first degree (Penal Law § 120.10
[4]), defendant contends that his waiver of the right to appeal is
invalid. We reject that contention. County Court “did not improperly
conflate the waiver of the right to appeal with those rights
automatically forfeited by a guilty plea” (People v Bentley, 63 AD3d
1624, 1625, lv denied 13 NY3d 742; see People v Dillon, 67 AD3d 1382;
People v Williams, 49 AD3d 1281, 1282, lv denied 10 NY3d 940).
Defendant further contends that the court erred in denying his motion
to withdraw his guilty plea on the ground that it was not knowingly,
intelligently, and voluntarily entered. Although that contention
“survives [defendant’s] valid waiver of the right to appeal” (People v
Dozier, 59 AD3d 987, 987, lv denied 12 NY3d 815; see People v Murphy,
71 AD3d 1466, lv denied 15 NY3d 754), we conclude that it is without
merit. The contention of defendant that his plea was involuntary
because he was coerced by defense counsel is belied by his responses
to the court’s questions during the plea colloquy, indicating that he
was pleading guilty voluntarily and that no threats or promises had
induced the plea (see People v Gimenez, 59 AD3d 1088, lv denied 12
NY3d 816; People v Nichols, 21 AD3d 1273, 1274, lv denied 6 NY3d 757).

     Defendant’s challenge to the severity of the sentence is
encompassed by the valid waiver of the right to appeal (see People v
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                                                         KA 09-01374

Lopez, 6 NY3d 248, 255-256; People v Hidalgo, 91 NY2d 733, 737). To
the extent that the contention of defendant concerning ineffective
assistance of counsel survives his guilty plea and his waiver of the
right to appeal (see People v Nichols, 32 AD3d 1316, lv denied 8 NY3d
848, 988; People v Fifield, 24 AD3d 1221, 1222, lv denied 6 NY3d 775),
we conclude that his contention lacks merit (see generally People v
Ford, 86 NY2d 397, 404).




Entered:   March 25, 2011                      Patricia L. Morgan
                                               Clerk of the Court
