        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

339
KA 10-01196
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GERALD R. KROUTH, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

GERALD R. KROUTH, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NICOLE M. FANTIGROSSI OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered February 19, 2010. The judgment convicted
defendant, upon his plea of guilty, of sexual abuse 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 sexual abuse in the first degree (Penal Law § 130.65
[3]), defendant contends that his waiver of the right to appeal is
unenforceable and that Supreme Court erred in denying his motion to
suppress identification testimony from the child victim. We conclude
that the waiver of the right to appeal is enforceable and that it
therefore precludes defendant from challenging the court’s suppression
ruling. “A waiver of the right to appeal is effective only so long as
the record demonstrates that it was made knowingly, intelligently and
voluntarily” (People v Lopez, 6 NY3d 248, 256).   Here, the 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 James, 71 AD3d 1465, 1465 [internal quotation marks
omitted]; cf. People v Adger, 83 AD3d 1590, 1591, lv denied 17 NY3d
857), and informed him that the waiver was a condition of the plea
agreement (cf. People v Williams, 49 AD3d 1281, 1282, lv denied 10
NY3d 940). The record also establishes that defendant “indicated that
he had spoken with defense counsel and understood that he was waiving
his right to appeal as a condition of the plea” (People v Dunham, 83
AD3d 1423, 1424, lv denied 17 NY3d 794). Finally, the court made
clear to defendant that the right to appeal was separate and distinct
from the rights automatically forfeited upon plea (see Lopez, 6 NY3d
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                                                         KA 10-01196

at 256; see also People v Bradshaw, 18 NY3d 257, 264).

     We note in any event that the court properly denied defendant’s
suppression motion pursuant to People v Gee (286 AD2d 62, 72-73, affd
99 NY2d 158, rearg denied 99 NY2d 652).




Entered:   March 28, 2014                       Frances E. Cafarell
                                                Clerk of the Court
