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

818
KA 13-00865
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

MELISSA COTTON, DEFENDANT-APPELLANT.


NANCY J. BIZUB, BUFFALO, FOR DEFENDANT-APPELLANT.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (MARSHALL A. KELLY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Mark H. Dadd,
J.), rendered January 10, 2013. The judgment convicted defendant,
upon her plea of guilty, of robbery in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting her upon her
plea of guilty of robbery in the second degree (Penal Law § 160.10
[1]), defendant contends that her waiver of the right to appeal is
invalid because it was not knowingly, voluntarily, and intelligently
entered. The record demonstrates, however, 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 Burt,
101 AD3d 1729, 1730, lv denied 20 NY3d 1060 [internal quotation marks
omitted]), and that, during the plea colloquy, the court properly
described “ ‘the nature of the right being waived without lumping that
right into the panoply of trial rights automatically forfeited upon
pleading guilty’ ” (People v Tabb, 81 AD3d 1322, 1322, lv denied 16
NY3d 900, quoting People v Lopez, 6 NY3d 248, 257; see People v
Harris, 94 AD3d 1484, 1485, lv denied 19 NY3d 961). Defendant also
signed a written waiver of the right to appeal (see People v Pulley,
107 AD3d 1560, 1561, lv denied 21 NY3d 1076). We conclude that
defendant’s “responses during the plea colloquy and [her] execution of
a written waiver of the right to appeal establish that [s]he
intelligently, knowingly, and voluntarily waived [her] right to
appeal” (People v Rumsey, 105 AD3d 1448, 1449, lv denied 21 NY3d 1019;
see generally Lopez, 6 NY3d at 256), and that valid waiver forecloses
any challenge by defendant to the severity of her sentence (see Lopez,
6 NY3d at 256; People v Hidalgo, 91 NY2d 733, 737; People v
Washington, 117 AD3d 1416, 1416).

     Finally, defendant’s contention that she was denied effective
                                 -2-                           818
                                                         KA 13-00865

assistance of counsel does not survive her plea or her valid waiver of
the right to appeal inasmuch as defendant “failed to demonstrate that
‘the plea bargaining process was infected by [the] allegedly
ineffective assistance or that defendant entered the plea because of
[her] attorney[’s] allegedly poor performance’ ” (People v Wright, 66
AD3d 1334, 1334, lv denied 13 NY3d 912; see People v Rizek [appeal No.
1], 64 AD3d 1180, 1180, lv denied 13 NY3d 862).




Entered:   July 11, 2014                       Frances E. Cafarell
                                               Clerk of the Court
