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

668
KA 13-01491
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOHN W. CARNEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN W. CARNEY, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael F.
Pietruszka, J.), rendered May 28, 2013. The judgment convicted
defendant, upon his plea of guilty, of manslaughter 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 manslaughter in the first degree (Penal Law § 125.20
[1]), defendant contends that his waiver of the right to appeal is
invalid because it was not knowingly, voluntarily, and intelligently
entered. We reject that contention. The record establishes that
County Court engaged defendant “ ‘in an adequate colloquy to ensure
that the waiver of the right to appeal was a knowing and voluntary
choice’ ” (People v Ripley, 94 AD3d 1554, 1554, lv denied 19 NY3d
976), and that defendant “understood that the right to appeal is
separate and distinct from those rights automatically forfeited upon a
plea of guilty” (People v Lopez, 6 NY3d 248, 256). The valid waiver
of the right to appeal forecloses any challenge by defendant to the
severity of the bargained-for sentence (see id. at 255; see also
People v Vincent, 114 AD3d 1171, 1171, lv denied 23 NY3d 969; People v
Williams, 49 AD3d 1280, 1280; see generally People v Lococo, 92 NY2d
825, 827).

     Defendant’s further contention that the court failed to comply
with the procedural requirements of CPL 400.21 does not survive his
valid waiver of the right to appeal inasmuch as he challenges the
procedure pursuant to which he was sentenced as a second felony
offender, rather than the legality of the sentence (see People v
                                 -2-                           668
                                                         KA 13-01491

Adams, 64 AD3d 1186, 1187, lv denied 13 NY3d 834).

     Finally, we have examined defendant’s remaining contentions in
his pro se supplemental brief and conclude that none requires
modification or reversal of the judgment.




Entered:   June 12, 2015                        Frances E. Cafarell
                                                Clerk of the Court
