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

438
KA 11-01157
PRESENT: SMITH, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RANDY COLUCCI, SR., DEFENDANT-APPELLANT.


KATHLEEN E. CASEY, BARKER, FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Sperrazza, J.), rendered April 14, 2011. The judgment convicted
defendant, upon his plea of guilty, of manslaughter in the second
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 manslaughter in the second degree (Penal
Law § 125.15 [1]). We conclude that defendant’s contentions regarding
his waiver of the right to challenge the judgment of conviction by
motion pursuant to CPL articles 330 and 440 or by writ of coram nobis
are premature (see People v Hill, ___ AD3d ___, ___ [Mar. 16, 2012]).
It is settled that the courts of this State may decide only
controversies that are presently justiciable. To be justiciable, a
controversy must “involve present, rather than hypothetical,
contingent or remote, prejudice” to a party (American Ins. Assn. v
Chu, 64 NY2d 379, 383, appeal dismissed and cert denied 474 US 803).
Here, defendant’s contentions with respect to such postjudgment relief
“seek[] merely an advisory opinion” (Hill, ___ AD3d at ___).

     We reject defendant’s further contention that his waiver of the
right to appeal was invalid (see generally People v Lopez, 6 NY3d 248,
256). Defendant signed a written waiver of the right to appeal, and
the plea colloquy demonstrates that he knowingly, intelligently and
voluntarily waived the right to appeal (see People v James, 71 AD3d
1465, 1465). Further, the record establishes that he “ ‘understood
that the right to appeal is separate and distinct from those rights
automatically forfeited upon a plea of guilty’ ” (People v Dunham, 83
                                 -2-                           438
                                                         KA 11-01157

AD3d 1423, 1424, lv denied 17 NY3d 794, quoting Lopez, 6 NY3d at 256).




Entered: April 20, 2012                        Frances E. Cafarell
                                               Clerk of the Court
