People v Moore
2008 NY Slip Op 10309 [57 AD3d 1432]
December 31, 2008
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 11, 2009


The People of the State of New York, Respondent, v John Moore, Appellant.

[*1] David J. Farrugia, Public Defender, Lockport (Mary-Jean Bowman of counsel), for defendant-appellant.

Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), for respondent.

Appeal from a judgment of the Niagara County Court (Peter L. Broderick, Sr., J.), rendered August 16, 2007. The judgment convicted defendant, upon his plea of guilty, of attempted assault in the second degree.

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 assault in the second degree (Penal Law §§ 110.00, 120.05 [2]), defendant contends that his plea was not validly entered because he was incompetent. We reject that contention. County Court properly relied upon the reports of two mental health professionals who found that defendant was competent (see People v Alexander, 185 AD2d 712, 713 [1992], lv denied 80 NY2d 926 [1992]). In addition, the record of the plea colloquy establishes "that defendant possessed a 'rational and factual understanding of the proceeding' . . . [and] that defendant's guilty plea was knowingly, intelligently and voluntarily entered with the aid of counsel and after the court had fully advised him of the consequences of his plea" (id.). Contrary to the further contention of defendant, he knowingly, intelligently and voluntarily waived his right to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]), and that valid waiver encompasses his challenge to the severity of the sentence (see People v Hidalgo, 91 NY2d 733, 737 [1998]; People v Cameron, 55 AD3d 1382 [2008]). Present—Scudder, P.J., Hurlbutt, Peradotto, Green and Gorski, JJ.