Opinion
108729
04-19-2018
The PEOPLE of the State of New York, Respondent, v. Jason M. GILMOUR, Appellant.
Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant. Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.
Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.
Before: Garry, P.J., Clark, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDERAppeal from a judgment of the County Court of St. Lawrence County (Champagne, J.), rendered July 5, 2016, convicting defendant upon his plea of guilty of the crime of burglary in the third degree.Defendant was indicted and charged with burglary in the third degree and grand larceny in the third degree. In full satisfaction of that indictment and other pending charges, defendant agreed to waive his right to appeal and plead guilty to burglary in the third degree in exchange for the negotiated sentence of 3½ to 7 years—to be served as a sentence of parole supervision through the Willard Parole Supervision Program. At the conclusion of the plea colloquy that followed, defendant pleaded guilty to burglary in the third degree and thereafter was sentenced as a second felony offender in accordance with the terms of the plea agreement. This appeal by defendant ensued.
We affirm. Contrary to defendant's assertion, we find that his waiver of the right to appeal was knowing, intelligent and voluntary. County Court explained that defendant's appellate rights were separate and distinct from the trial-related rights that he was forfeiting and defendant, in turn, assured the court that he understood the nature of the waiver (see People v. Cayon, 158 A.D.3d 946, 947, 68 N.Y.S.3d 777 [2018] ; People v. Felker, 155 A.D.3d 1258, 1258, 64 N.Y.S.3d 746 [2017] ). Additionally, defendant signed a detailed written waiver, wherein he expressly waived his right to challenge the severity of his sentence and indicated that he had been afforded sufficient time to confer with counsel (see People v. Lawrence, 155 A.D.3d 1259, 1260, 63 N.Y.S.3d 908 [2017] ; People v. Upshur, 150 A.D.3d 1552, 1553, 52 N.Y.S.3d 685 [2017] ); the record further reflects that County Court confirmed that defendant had been fully apprised by counsel as to the significance of the waiver (compare People v. Chappelle, 121 A.D.3d 1166, 1167, 994 N.Y.S.2d 435 [2014], lv denied 24 N.Y.3d 1118, 3 N.Y.S.3d 760, 27 N.E.3d 474 [2015] ). Under these circumstances, we are satisfied that defendant's combined oral and written waiver of the right to appeal was valid (see People v. Hutchison, 151 A.D.3d 1481, 1482, 54 N.Y.S.3d 879 [2017] ; People v. Mahon, 148 A.D.3d 1303, 1303, 48 N.Y.S.3d 842 [2017] ). In light of defendant's valid waiver, his challenge to the severity of the sentence imposed is precluded (see People v. Curry, 158 A.D.3d 898, 899, 68 N.Y.S.3d 782 [2018] ; People v. Brothers, 155 A.D.3d 1257, 1258, 63 N.Y.S.3d 907 [2017] ).
ORDERED that the judgment is affirmed.
Garry, P.J., Clark, Mulvey, Aarons and Pritzker, JJ., concur.