           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
1238
KA 10-00018
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

CHARLES HICKS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHELLE L.
CIANCIOSA OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered December 9, 2009. 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: On appeal from a judgment convicting him upon a plea
of guilty of attempted robbery in the first degree (Penal Law §§
110.00, 160.15 [4]), defendant contends that his waiver of the right
to appeal was invalid. We reject that contention. Despite
defendant’s contention to the contrary, the record establishes that he
knowingly, intelligently and voluntarily waived his right to appeal as
a condition of the plea bargain (see generally People v Lopez, 6 NY3d
248, 256). Supreme Court “engage[d] the defendant in an adequate
colloquy to ensure that the waiver of the right to appeal was a
knowing and voluntary choice” (People v James, 71 AD3d 1465, 1465
[internal quotation marks omitted]), and the record establishes that
defendant “ ‘understood that the right to appeal is separate and
distinct from those rights automatically forfeited upon a plea of
guilty’ ” (People v Dunham, 83 AD3d 1423, 1424, lv denied 17 NY3d 794,
quoting Lopez, 6 NY3d at 256). The challenge by defendant to the
court’s suppression ruling is encompassed by his valid waiver of the
right to appeal (see People v Kemp, 94 NY2d 831, 833; People v
Williams, 49 AD3d 1281, lv denied 10 NY3d 940).




Entered:   November 10, 2011                       Patricia L. Morgan
                                                   Clerk of the Court
