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

292
KA 13-01227
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RYAN S. SMITH, DEFENDANT-APPELLANT.


PATRICIA M. MCGRATH, LOCKPORT, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered June 4, 2013. The judgment convicted defendant,
upon his plea of guilty, of burglary in the first degree (five
counts), robbery in the first degree (seven counts), kidnapping in the
second degree (three counts), criminal use of a firearm in the first
degree (two counts), assault in the first degree, assault in the
second degree (two counts), criminal possession of a weapon in the
second degree, menacing a police officer or peace officer, grand
larceny in the third degree and resisting arrest.

     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, inter alia, five counts of burglary in the
first degree (Penal Law § 140.30 [2] - [4]) and seven counts of
robbery in the first degree (§ 160.15 [1], [3], [4]). Contrary to
defendant’s contention, the record establishes that he knowingly,
voluntarily and intelligently waived the right to appeal (see
generally People v Lopez, 6 NY3d 248, 256). There is no support in
the record for defendant’s contention that his waiver of the right to
appeal was the result of coercion, “particularly considering [County
C]ourt’s thorough colloquy,” the extensive consultations between
defendant and defense counsel regarding the waiver, and defendant’s
affirmative statement that his agreement to the waiver was voluntary
(People v Hayes, 71 AD3d 1187, 1188, lv denied 15 NY3d 852,
reconsideration denied 15 NY3d 921, citing People v Holman, 89 NY2d
876, 878). Here, “[t]here was no effort to conceal error and
defendant was fully aware of what the appealable issues were” (Holman,
89 NY2d at 878). In addition, defendant obtained a favorable bargain
by waiving his right to appeal as a condition of his plea inasmuch as
he significantly limited his sentencing exposure (see People v Evans,
59 AD3d 216, 216-217, lv denied 12 NY3d 816).
                                 -2-                           292
                                                         KA 13-01227

     “The valid waiver by defendant of the right to appeal encompasses
his contention that the court erred in denying his pre-plea recusal
motion” (People v Thorn, 298 AD2d 900, 901, lv denied 99 NY2d 540).
Contrary to defendant’s further contention, that waiver also
encompasses his challenge to the court’s order compelling him to
provide a buccal swab for DNA analysis (see generally Lopez, 6 NY3d at
255; People v Rodriguez, 93 AD3d 1334, 1335, lv denied 19 NY3d 966)
and, in any event, that challenge is forfeited by his plea of guilty
(see People v Tehoke, 6 AD3d 1173, 1174; see generally People v
Hansen, 95 NY2d 227, 230-232).




Entered:   April 29, 2016                      Frances E. Cafarell
                                               Clerk of the Court
