SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

331 

KA 10-00726 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

ROBERT R. DUNHAM, DEFENDANT-APPELLANT.

 

DAVID J. PAJAK, ALDEN, FOR DEFENDANT-APPELLANT. 

DONALD H. DODD, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Oswego County Court (Spencer J.

Ludington, A.J.), rendered July 15, 2009. The judgment convicted

defendant, upon his plea of guilty, of attempted forgery in the second

degree and grand larceny in the fourth 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 attempted forgery in the second degree

(Penal Law §§ 110.00, 170.10 [1]) and grand larceny in the fourth

degree (§ 155.30 [8]). We reject defendant’s contention that his

waiver of the right to appeal was not knowing and voluntary. Although

“a trial court need not engage in any particular litany when apprising

a defendant pleading guilty of the individual rights abandoned, it

must make 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 Lopez, 6 NY3d 248, 256; see People v McDonald, 270 AD2d 955,

lv denied 95 NY2d 800). “The record must establish that the defendant

understood that the right to appeal is separate and distinct from

those rights automatically forfeited upon a plea of guilty” (Lopez, 6

NY3d at 256). Here, the record establishes that defendant indicated

that he had spoken with defense counsel and understood that he was

waiving his right to appeal as a condition of the plea. Further,

defendant’s monosyllabic affirmative responses to questioning by

County Court do not render his plea unknowing and involuntary (see

People v VanDeViver, 56 AD3d 1118, lv denied 11 NY3d 931, rearg denied

12 NY3d 788), and the fact that defendant was not informed that he

could challenge County Court’s suppression ruling on appeal did not

render the plea involuntary (see generally People v Kemp, 94 NY2d

831). In any event, defendant’s challenge to the court’s suppression

ruling is encompassed by his waiver of the right to appeal (see id. at

833). Additionally, that challenge is without merit (see People v
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KA 10-00726 

Steward, 88 NY2d 496, 501-502, rearg denied 88 NY2d 1018; People v

Scaccia, 6 AD3d 1105, 1105-1106, lv denied 3 NY3d 681). Although

defendant’s contention that his plea was involuntary survives his

waiver of the right to appeal, defendant failed to preserve that

contention by moving to withdraw the plea or set aside the conviction

(see People v Busch, 60 AD3d 1393, lv denied 12 NY3d 913), and we

decline to exercise our power to review it as a matter of discretion

in the interest of justice (see CPL 470.15 [6] [a]). Finally,

although defendant’s contention that the court failed to apprehend the

extent of its sentencing discretion survives his waiver of the right

to appeal and does not require preservation (see People v Schafer, 19

AD3d 1133), that contention is without merit. The sentence imposed

was in accordance with the plea agreement, and there is no support for

defendant’s contention in the record before us.

Entered: April 1, 2011 Patricia L. Morgan

Clerk of the Court