People v Talley

People v Talley 2013 NY Slip Op 08733 Released on December 27, 2013 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.

Released on December 27, 2013
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND SCONIERS, JJ.
1268 KA 13-00055

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

v

STEVEN TALLEY, DEFENDANT-APPELLANT.


Appeal from a judgment of the Supreme Court, Erie County (Gerald J. Whalen, J.), rendered July 11, 2011. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the fourth degree.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR RESPONDENT.


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

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted criminal possession of a controlled substance in the fourth degree (Penal Law §§ 110.00, 220.09 [1]), defendant contends that his waiver of the right to appeal is unenforceable and that his sentence is unduly harsh and severe. The record demonstrates, however, that 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 Burt, 101 AD3d 1729, 1730, lv denied 20 NY3d 1060 [internal quotation marks omitted]), and that 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 thus conclude that the waiver is enforceable and that defendant is thereby foreclosed from challenging the severity of his sentence (see People v Lopez, 6 NY3d 248, 256; People v Suttles, 107 AD3d 1467, 1468, lv denied 21 NY3d 1046).
Entered: December 27, 2013
Frances E. Cafarell
Clerk of the Court