SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

756 

KA 10-02502 

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

BENJAMIN FINCH, DEFENDANT-APPELLANT.

 

JAMES DOWSEY, III, ELLICOTTVILLE (KELIANN M. ELNISKI OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY (KELLY M. BALCOM

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Cattaraugus County Court (Larry M.

Himelein, J.), rendered September 20, 2010. The judgment convicted

defendant, upon his plea of guilty, of arson in the third degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon his plea of guilty of arson in the third degree (Penal Law §

150.10 [1]). We reject defendant’s contention that County Court made

an insufficient inquiry regarding his waiver of the right to appeal

and thus that the waiver is invalid. “The court need not engage in

any particular litany regarding a waiver of the right to appeal, so

long as the court ‘make[s] certain that a defendant’s understanding of

the terms and conditions of a plea agreement is evident on the face of

the record’ ” (People v Miller, 87 AD3d 1303, 1303, lv denied 18 NY3d

926, quoting People v Lopez, 6 NY3d 248, 256). Here, the record

establishes that defendant’s waiver of the right to appeal was

knowing, intelligent, and voluntary (see Lopez, 6 NY3d at 256; Miller,

87 AD3d at 1303). 

Defendant failed to preserve for our review his contention that

his plea was not voluntarily entered “because . . . he failed to move

to withdraw the plea or to vacate the judgment of conviction” (People

v Connolly, 70 AD3d 1510, 1511, lv denied 14 NY3d 886). In any event,

that contention lacks merit. The record of the plea colloquy

establishes that defendant stated that he understood the nature of the

rights that he was relinquishing by pleading guilty, that he had not

been coerced into entering the plea, and that he was not promised

anything in exchange for his guilty plea. Indeed, he expressly stated

that he was entering the plea voluntarily after having sufficient time

to consult with his attorney. “[T]he record [thus] establishes that
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KA 10-02502 

defendant understood the nature and consequences of his actions”

(People v Watkins, 77 AD3d 1403, 1403-1404, lv denied 15 NY3d 956).

Defendant’s challenge to the validity of his waiver of his Miranda

rights is encompassed by his waiver of the right to appeal (see People

v Kemp, 94 NY2d 831, 833; People v Mitchell, 93 AD3d 1173, 1174).

Finally, we agree with defendant that his challenge to the

jurisdictional requirements of the waiver of indictment and the

superior court information need not be preserved for our review (see

People v Boston, 75 NY2d 585, 589 n; People v Waid, 26 AD3d 734, 734-

735, lv denied 6 NY3d 839), and that his challenge is not precluded by

his valid waiver of the right to appeal (see Waid, 26 AD3d at 734-735;

People v Verrone, 266 AD2d 16, 18). Nevertheless, we conclude that

defendant’s contention lacks merit. 

Entered: June 8, 2012 Frances E. Cafarell

Clerk of the Court