Opinion
No. 112052
05-26-2022
The People of the State of New York, Respondent, v. Alejandro Almanzar, Appellant.
Donnial K. Hinds, Albany, for appellant. David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Calendar Date: April 27, 2022
Donnial K. Hinds, Albany, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: Clark, J.P., Pritzker, Colangelo, Ceresia and McShan, JJ.
McShan, J.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered June 21, 2019, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.
Defendant was charged in a felony complaint with promoting prison contraband in the first degree. He thereafter waived indictment and pleaded guilty to a superior court information charging him with attempted promoting prison contraband in the first degree and he waived the right to appeal. County Court sentenced defendant, as a second felony offender, to the agreed-upon prison term of 1½ to 3 years, to run consecutively to the sentence he was currently serving. Defendant appeals.
Initially, defendant's contention that County Court improperly granted the People's motion to amend the superior court information is unpreserved for our review, as he failed to oppose the application and, in fact, consented to the amendment (see People v Houze, 177 A.D.3d 1184, 1187 [2019], lv denied 34 N.Y.3d 1159 [2020]; People v McKinney, 138 A.D.3d 604, 605 [2016], lv denied 27 N.Y.3d 1153 [2016]; People v Lamont, 125 A.D.3d 1106, 1106 [2015], lvs denied 26 N.Y.3d 967, 969 [2015]). We further reject defendant's claim that his waiver of the right to appeal was invalid. The record reflects that defendant was advised that an appeal waiver was a condition of the plea deal. During the colloquy, County Court sufficiently explained the nature of the waiver and, although the court did not use the words separate and distinct, the written waiver executed by defendant clearly apprised defendant that the right to appeal was "separate and distinct from the other rights that are forfeited by [his] plea of guilty" (see People v Provost, 181 A.D.3d 1059, 1059-1060 [2020]; People v Gamble, 177 A.D.3d 1042, 1042-1043 [2019], lv denied 34 N.Y.3d 1128 [2020]). Defendant affirmed that he had discussed the written waiver with counsel and that he understood its ramifications (see People v Christy, 200 A.D.3d 1322, 1323 [2021]; People v Weidenheimer, 181 A.D.3d 1096, 1097 [2020]). Under these circumstances, and having discerned no other infirmities in the waiver (compare People v Thomas, 34 N.Y.3d 545, 562-563 [2019]), we find that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v Lopez, 6 N.Y.3d 248, 256 [2006]; People v Ayala, 194 A.D.3d 1255, 1256 [2021], lv denied 37 N.Y.3d 970 [2021]). In light of his valid appeal waiver, defendant's challenge to the severity of his sentence is precluded (see People v Hemingway, 192 A.D.3d 1266, 1267 [2021], lvs denied 37 N.Y.3d 956, 960 [2021]; People v Carter, 191 A.D.3d 1168, 1170 [2021]).
Clark, J.P., Pritzker, Colangelo and Ceresia, JJ., concur.
ORDERED that the judgment is affirmed.