People v. Lopez

210 A.D.3d 700

177 N.Y.S.3d 684

The PEOPLE, etc., respondent,

v.Yen S. LOPEZ, appellant.

2020–00614

Ind. No. 759/19

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 30, 2022

November 2, 2022

Del Atwell, East Hampton, NY, for appellant.

Raymond A. Tierney, District Attorney, Riverhead, NY (Jonathan D. Estreich and Glenn Green of counsel), for respondent.

COLLEEN D. DUFFY, J.P., LINDA CHRISTOPHER, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Timothy P. Mazzei, J.), rendered December 12, 2019, convicting him of criminal contempt in the first degree (two counts) and criminal contempt in the second degree (two counts), upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's waiver of the right to appeal was knowing, voluntary, and intelligent (see People v. Sanders, 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Stevens, 203 A.D.3d 958, 959, 163 N.Y.S.3d 615 ). Contrary to the defendant's sole contention about the validity of the waiver of the right to appeal, "a written waiver form is not required for an appeal waiver to be valid" ( People v. Stevens, 203 A.D.3d at 960, 163 N.Y.S.3d 615 ; see People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

Since the defendant validly waived his right to appeal, appellate review of his contention that the procedure used to adjudicate him a second felony offender was defective is precluded (see People v. Moye, 170 A.D.3d 1198, 1199, 95 N.Y.S.3d 535 ; People v. Saliani, 163 A.D.3d 854, 855, 80 N.Y.S.3d 471 ), as his challenge merely addresses the adequacy of the procedures used by the County Court to arrive at its sentence determination (see People v. Johnson, 199 A.D.3d 832, 833, 154 N.Y.S.3d 248 ; People v. Hicks, 134 A.D.3d 854, 854, 19 N.Y.S.3d 907 ). Likewise, appellate review of the defendant's claim of ineffective assistance of counsel also is precluded by his valid waiver of the right to appeal since his claim does not implicate the voluntariness of his plea (see People v. Rosario, 204 A.D.3d 703, 703, 163 N.Y.S.3d 849 ; People v. Tenesaca, 199 A.D.3d 941, 942, 154 N.Y.S.3d 452 ).

DUFFY, J.P., CHRISTOPHER, DOWLING and WARHIT, JJ., concur.