People v Abernathy
2016 NY Slip Op 00786 [136 AD3d 1276]
February 5, 2016
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 23, 2016


[*1]
 The People of the State of New York, Respondent, v Kevin L. Abernathy, Appellant.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Karen C. Russo-Mclaughlin of counsel), for defendant-appellant.

Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), for respondent.

Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), rendered October 9, 2013. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him upon his guilty plea of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). Contrary to the contention of defendant, the record establishes that his waiver of the right to appeal was knowingly, intelligently and voluntarily entered (see People v Lopez, 6 NY3d 248, 256 [2006]). County Court thoroughly reviewed the consequences of the waiver with defendant, after which defendant indicated that he understood those consequences and orally waived his right to appeal (see People v Peterson, 35 AD3d 1195, 1196 [2006], lv denied 8 NY3d 926 [2007]). Defendant's challenge to the factual sufficiency of the plea allocution is encompassed by his valid waiver of the right to appeal (see People v Rosado, 70 AD3d 1315, 1316 [2010], lv denied 14 NY3d 892 [2010]). Present—Smith, J.P., Peradotto, Lindley, DeJoseph and Scudder, JJ.