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

541
KA 13-02011
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TYRONE L. GRAHAM, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered February 28, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a weapon 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 criminal possession of a weapon
in the second degree (Penal Law §§ 110.00, 265.03 [3]). Contrary to
defendant’s contention, the record establishes that he knowingly,
voluntarily and intelligently waived his right to appeal (see
generally People v Lopez, 6 NY3d 248, 256). We agree with defendant
that County Court’s statement to him that, “ ‘by pleading guilty, [he
would] give up the right to allege [that] the police unlawfully
collected evidence or did anything else illegal’ was misleading to the
extent that it improperly implied that defendant’s right to challenge
the suppression ruling on appeal was automatically extinguished upon
the entry of his guilty plea” (People v Braxton, 129 AD3d 1674, 1675,
lv denied 26 NY3d 965; see People v Weinstock, 129 AD3d 1663, 1663, lv
denied 26 NY3d 1012). We conclude, however, that the court’s “plea
colloquy, together with the written waiver of the right to appeal,
adequately apprised defendant that the right to appeal is separate and
distinct from those rights automatically forfeited upon a plea of
guilty” (Braxton, 129 AD3d at 1675 [internal quotation marks
omitted]). Defendant’s valid waiver of the right to appeal
encompasses his contention that the court erred in refusing to
suppress physical evidence (see People v Kemp, 94 NY2d 831, 833;
                                -2-                  541
                                               KA 13-02011

Weinstock, 129 AD3d at 1663).




Entered:   June 10, 2016              Frances E. Cafarell
                                      Clerk of the Court
