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

794
KA 13-00500
PRESENT: SMITH, J.P., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LESTER A. BRAXTON, DEFENDANT-APPELLANT.


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

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered June 7, 2012. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a weapon in the second degree and driving while intoxicated.

     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]) and driving
while intoxicated (Vehicle and Traffic Law § 1192 [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 defendant that, “by pleading guilty,
[he would] give up the right to allege 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
court’s suppression ruling on appeal was automatically extinguished
upon the entry of his guilty plea (see generally People v Moyett, 7
NY3d 892, 892-893; People v Williams, 49 AD3d 1281, 1282, lv denied 10
NY3d 940). Nevertheless, we conclude that “ ‘County 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’ ” (People v Arney, 120 AD3d 949, 949; see People v Ramos, 7
NY3d 737, 738; Williams, 49 AD3d at 1282). Defendant’s valid waiver
of the right to appeal encompasses his challenge to the court’s
suppression ruling (see People v Kemp, 94 NY2d 831, 833), and his
challenge to the severity of the bargained-for sentence (see Lopez, 6
                           -2-                  794
                                          KA 13-00500

NY3d at 255).




Entered:   June 19, 2015         Frances E. Cafarell
                                 Clerk of the Court
