People v Clark

People v Clark 2023 NY Slip Op 05890 Decided on November 17, 2023 Appellate Division, Fourth 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 November 17, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., BANNISTER, GREENWOOD, NOWAK, AND DELCONTE, JJ.
815 KA 22-00968

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

DEREK E. CLARK, DEFENDANT-APPELLANT.

THOMAS L. PELYCH, HORNELL, FOR DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Steuben County Court (Patrick F. McAllister, A.J.), rendered May 2, 2022. The judgment convicted defendant upon his plea of guilty of aggravated vehicular homicide.

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 aggravated vehicular homicide (Penal Law § 125.14 [7]), defendant contends that the sentence is unduly harsh and severe. Defendant, however, knowingly, voluntarily, and intelligently waived the right to appeal (see generally People v Lopez, 6 NY3d 248, 256 [2006]), and the valid waiver encompasses his challenge to the severity of the sentence (see People v Lollie, 204 AD3d 1430, 1431 [4th Dept 2022], lv denied 38 NY3d 1134 [2022]). We note that, although the written waiver form executed by defendant incorrectly portrays the waiver as an absolute bar to the taking of an appeal (see generally People v Thomas, 34 NY3d 545, 564-567 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]), County Court's oral colloquy, which followed the appropriate model colloquy, cured that defect (see People v Jackson, 198 AD3d 1317, 1318 [4th Dept 2021], lv denied 37 NY3d 1096 [2021]).

Entered: November 17, 2023

Ann Dillon Flynn

Clerk of the Court