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

272
KA 15-00935
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN,


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILFREDO MORALES, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MATTHEW
B. POWERS OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered January 22, 2014. The judgment convicted
defendant, upon his plea of guilty, of attempted assault 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 attempted assault in the first degree (Penal Law
§§ 110.00, 120.10 [1]), defendant contends that Supreme Court erred in
failing to follow the requirements of CPL article 730 to determine
whether he was competent to stand trial (see CPL 730.30 [1]), and thus
reversal is required. We reject that contention. “The record
indicates that the court granted defense counsel’s request for a
‘forensic [evaluation]’ of defendant by ordering only an informal
psychological examination and not by issuing an order of examination
pursuant to CPL article 730” (People v Castro, 119 AD3d 1377, 1378, lv
denied 24 NY3d 1082; see People v Johnson, 252 AD2d 967, 968, affd 92
NY2d 976). “[T]he decision of the court to order an informal
psychological examination was within its discretion . . . and did not
automatically require the court to issue an order of examination or
otherwise comply with CPL article 730” (Castro, 119 AD3d at 1378
[internal quotation marks omitted]; see Johnson, 252 AD2d at 968).

     Defendant further contends that his sentence is unduly harsh and
severe and that his waiver of the right to appeal does not preclude
his challenge to the severity of his sentence. Contrary to
defendant’s contention, we conclude that “the record demonstrates that
[the waiver] was made knowingly, intelligently and voluntarily”
(People v Lopez, 6 NY3d 248, 256), and that “defendant ha[d] ‘a full
appreciation of the consequences’ of such waiver” (People v Bradshaw,
                                 -2-                           272
                                                         KA 15-00935

18 NY3d 257, 264). We further conclude that the waiver encompasses
defendant’s challenge to the severity of the sentence. First, the
waiver occurred following the court’s discussion of the maximum
sentence defendant faced (see People v Hidalgo, 91 NY2d 733, 737).
Second, although the court, during its oral colloquy, asked defendant
if he understood that he was waiving his “right to appeal the
conviction” (see People v Maracle, 19 NY3d 925, 928) and his right to
challenge “any errors or mistakes” without mentioning any challenge to
the severity of the sentence (see People v Dilley, 133 AD3d 1380,
1381), defendant executed and acknowledged on the record a written
waiver of the right to appeal, which specifically referenced the fact
that he was waiving his right to appeal the “sentence” except for any
challenge to the legality of the sentence. Based on the combination
of a lengthy oral colloquy, a written waiver wherein defendant
“expressly waived [his] right to appeal without limitation,” and an
acknowledgment of that written waiver during the oral colloquy, we
conclude that the valid waiver of the right to appeal encompasses
defendant’s challenge to the severity of the sentence (Hidalgo, 91
NY2d at 737; cf. People v Doblinger, 117 AD3d 1484, 1485).




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
