People v Bernal

People v Bernal 2012 NY Slip Op 00014 Decided on January 3, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 3, 2012
Gonzalez, P.J., Andrias, DeGrasse, Richter, Abdus-Salaam, JJ. 6456-
6015/07 6456A

[*1]The People of the State of New York, Respondent,

v

Luis Bernal, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Heidi Bota of
counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Matthew C.
Williams of counsel), for respondent.

Judgment, Supreme Court, New York County (Ellen Coin, J.), rendered June 27, 2010, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him to two years in prison followed by two years of post-release supervision, and judgment rendered, same date, court and Justice, convicting defendant, upon his plea of guilty, of violation of probation, and sentencing him to a consecutive term of one year of incarceration, unanimously affirmed.

Defendant's waiver of his right to appeal was effective. The lower court made clear that the appellate rights defendant was waiving were distinct from the trial rights extinguished by his guilty plea. During the plea colloquy defendant expressly waived his right to appeal his "conviction," which encompasses his right to challenge his sentence as harsh and excessive (People v Hidalgo, 91 NY2d 733, 737 [1998]). Furthermore, defendant executed a written waiver of his right to appeal (People v Lopez, 6 NY3d 248 [2006]). The record, therefore, establishes that defendant knowingly, intelligently and voluntarily waived his right to appeal. In any event, defendant's sentence was not excessive.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 3, 2012

CLERK