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

7
KA 15-01193
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MONROE BIBBS, DEFENDANT-APPELLANT.


DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT.

MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DANIEL J.
PUNCH OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered February 11, 2015. The judgment
convicted defendant, upon his plea of guilty, of attempted robbery 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 robbery in the first degree
(Penal Law §§ 110.00, 160.15 [4]). We reject defendant’s contention
that the waiver of the right to appeal is invalid. We conclude that
“[Supreme] Court did not improperly conflate the waiver of the right
to appeal with those rights automatically forfeited by a guilty plea”
(People v Bentley, 63 AD3d 1624, 1625, lv denied 13 NY3d 742; see
People v Bradshaw, 18 NY3d 257, 264; People v Lopez, 6 NY3d 248, 256),
and that the 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]).

     Defendant’s contention that the court erred in denying his motion
to withdraw the plea survives his valid waiver of the right to appeal
(see People v Montgomery, 63 AD3d 1635, 1635-1636, lv denied 13 NY3d
798), but we conclude that the court properly denied that motion.
“The decision to permit a defendant to withdraw a guilty plea rests in
the sound discretion of the court” (People v Smith, 122 AD3d 1300,
1301-1302, lv denied 25 NY3d 1172 [internal quotation marks omitted];
see People v Frederick, 45 NY2d 520, 524-525). Here, defendant’s
claims of coercion are belied by his statements during the plea
colloquy (see People v Merritt, 115 AD3d 1250, 1251), and we conclude
that the guilty plea was knowingly, voluntarily, and intelligently
entered (see People v Fiumefreddo, 82 NY2d 536, 543). To the extent
                                 -2-                             7
                                                         KA 15-01193

that defendant’s contention that he was denied effective assistance of
counsel when counsel failed to seek an adjournment of the trial and
warned defendant that he faced the maximum sentence if convicted after
trial survives his guilty plea and valid waiver of the right to appeal
(see People v Strickland, 103 AD3d 1178, 1178), we conclude that his
contention lacks merit (see People v Mann, 32 AD3d 865, 866, lv denied
8 NY3d 847).




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