Opinion
No. 112478
11-23-2022
The People of the State of New York, Respondent, v. Judson B. Foote Jr., Appellant.
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant. Gary M. Pasqua, District Attorney, Canton (Alexander A. V. Nichols of counsel), for respondent.
Calendar Date:October 20, 2022
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Alexander A. V. Nichols of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Aarons, Pritzker and McShan, JJ.
Egan Jr., J.P.
Appeal from a judgment of the County Court of St. Lawrence County (John F. Richey, J.), rendered July 27, 2020, convicting defendant upon his plea of guilty of the crime of rape in the first degree.
In February 2020, defendant waived indictment and consented to prosecution by superior court information charging him with two counts of sexual abuse in the first degree, criminal sexual act in the first degree and rape in the first degree. Defendant pleaded guilty to rape in the first degree in exchange for a determinate prison term of between six and seven years, to be followed by 15 years of postrelease supervision, with the understanding that certain orders of protection would be issued. Defendant was required to waive his right to appeal as part of this negotiated plea. County Court thereafter sentenced defendant to a prison term of seven years, to be followed by 15 years of postrelease supervision, and issued orders of protection for the benefit of six individuals with an expiration date in 2055. Defendant appeals.
We are initially unpersuaded by defendant's challenge to the validity of his appeal waiver. County Court advised defendant during the plea colloquy that an appeal waiver was a condition of his plea, explained that the right to appeal was separate and distinct from the rights automatically forfeited by his guilty plea, and further clarified that certain issues would survive the appeal waiver (see People v Lopez, 6 N.Y.3d 248, 256 [2006]; People v Sims, 207 A.D.3d 882, 883 [3d Dept 2022]; People v Hall, 204 A.D.3d 1228, 1228 [3d Dept 2022]). Defendant proceeded to execute a detailed written waiver in open court, and he affirmed to County Court both that he had read and understood that waiver and that he had discussed it with counsel to his satisfaction (see People v Grimshaw, 207 A.D.3d 959, 959 [3d Dept 2022]; People v Lapoint, 201 A.D.3d 1258, 1258 [3d Dept 2022], lv denied 38 N.Y.3d 1008 [2022]). We are therefore satisfied that defendant's appeal waiver was knowing, voluntary and intelligent (see People v Grimshaw, 207 A.D.3d at 959; People v Person, 184 A.D.3d 447, 447 [1st Dept 2020], lv denied 35 N.Y.3d 1069 [2020]). By waiving the right to appeal, defendant has foregone review of whether the sentence is harsh or excessive (see People v Lopez, 6 N.Y.3d at 255-256; People v Jean-Pierre, 203 A.D.3d 1226, 1227-1228 [3d Dept 2022], lv denied 38 N.Y.3d 1033 [2022]).
Defendant further argues that County Court erred in issuing orders of protection in favor of unauthorized individuals (see CPL 530.12 [5]; 530.13 [4]). Assuming, without deciding, that this argument survives his appeal waiver despite the fact that the issuance of orders of protection was a component of the plea agreement, it is unpreserved for our review in the absence of any pertinent objection at sentencing (see People v Donnelly, 199 A.D.3d 1167, 1168 [3d Dept 2021]; People v Cuttler, 180 A.D.3d 1221, 1222 [3d Dept 2020], lv denied 35 N.Y.3d 1026 [2020]; People v Loffler, 111 A.D.3d 1059, 1060-1061 [3d Dept 2013]).
Finally, defendant argues, and the People concede, that the duration of the orders of protection issued by County Court exceeds that allowed by statute (see CPL 530.12 [5]; 530.13 [4]; see generally People v Williams, 19 N.Y.3d 100 [2012]). This issue survives defendant's appeal waiver as the duration of the orders of protection was not placed on the record prior to his guilty plea and appeal waiver, and we deem it to have been preserved by his request at sentencing that the duration of the orders be reduced (compare People v Gardner, 129 A.D.3d 1386, 1387 [3d Dept 2015]; People v Hopper, 123 A.D.3d 1234, 1235 [3d Dept 2014]). Thus, the matter must be remitted to County Court for a new determination as to the expiration date of the orders of protection (see People v Hopper, 123 A.D.3d at 1235).
Lynch, Aarons, Pritzker and McShan, JJ., concur.
ORDERED that the judgment is modified, on the law, by reversing so much thereof as fixed the duration of the orders of protection; matter remitted to the County Court of St. Lawrence County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.