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

49
KA 14-01058
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL HAND, DEFENDANT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR
DEFENDANT-APPELLANT.

VALERIE G. GARDNER, DISTRICT ATTORNEY, PENN YAN (LORA J. TRYON OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Yates County Court (W. Patrick
Falvey, J.), rendered April 1, 2014. The judgment convicted
defendant, upon his plea of guilty, of attempted rape in the first
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 rape in the first degree (Penal
Law §§ 110.00, 130.35 [1]). Contrary to defendant’s contention, we
conclude that the record establishes that County Court “conducted an
adequate colloquy to ensure that the waiver of the right to appeal was
a knowing and voluntary choice” (People v Davis, 129 AD3d 1613, 1613,
lv denied 26 NY3d 966 [internal quotation marks omitted]), 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). Contrary to defendant’s
further contentions, his “ ‘monosyllabic affirmative responses to
questioning by [the c]ourt do not render his [waiver] unknowing and
involuntary’ ” (People v Harris, 94 AD3d 1484, 1485, lv denied 19 NY3d
961), and the court “was not required to specify during the colloquy
which specific claims survive the waiver of the right to appeal”
(People v Rodriguez, 93 AD3d 1334, 1335, lv denied 19 NY3d 966; see
People v Kosty, 122 AD3d 1408, 1408, lv denied 24 NY3d 1220).
Defendant’s contention that “his plea was not knowing, intelligent and
voluntary ‘because he did not recite the underlying facts of the crime
but simply replied to [the c]ourt’s questions with monosyllabic
responses is actually a challenge to the factual sufficiency of the
plea allocution,’ which is encompassed by the valid waiver of the
right to appeal” (People v Simcoe, 74 AD3d 1858, 1859, lv denied 15
NY3d 778). Finally, defendant’s valid waiver of the right to appeal
                                 -2-                            49
                                                         KA 14-01058

encompasses his challenge to the severity of the sentence (see Davis,
129 AD3d at 1615; see generally Lopez, 6 NY3d at 255-256).




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
