Opinion
2014-07-31
The PEOPLE of the State of New York, Respondent, v. Elia JACKSON, Appellant.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and DEVINE, JJ.
PETERS, P.J.
Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered June 29, 2011, convicting defendant upon her plea of guilty of the crime of attempted assault in the first degree.
In satisfaction of a three-count indictment, defendant entered into a negotiated plea agreement pursuant to which she entered a guilty plea to a reduced count of attempted assault in the first degree. The charges arose from defendant's admitted conduct in intentionally striking the victim with her car while driving, causing serious physical injuries. As part of the agreement, defendant waived her right to appeal the conviction and sentence and, in exchange, was promised a prison sentence of no more than nine years but not less than 3 1/2 years, with three years of postrelease supervision. County Court imposed a sentence of 8 1/2 years in prison, with three years of postrelease supervision, restitution and other terms. Defendant now appeals.
Initially, defendant argues that her appeal waiver and guilty plea were not knowing, voluntary and intelligent. A review of the plea colloquy establishes that defendant made a voluntary and knowing choice to waive her right to appeal ( see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011];People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];People v. Callahan, 80 N.Y.2d 273, 279–280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ). While defendant's challenge to the voluntariness of her plea survives that appeal waiver ( see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ), the record on appeal does not reflect that she challenged her guilty plea on this ground in a motion to withdraw her plea and, as such, this claim is unpreserved for appellate review ( see People v. Watson, 115 A.D.3d 1016, 1017, 981 N.Y.S.2d 627 [2014];People v. White, 104 A.D.3d 1056, 1056, 961 N.Y.S.2d 603 [2013],lvs. denied21 N.Y.3d 1018, 1021, 971 N.Y.S.2d 500, 503, 994 N.E.2d 396, 399 [2013] ). In any event, we find that the plea was knowing, voluntary and intelligent ( see People v. Tyrell, 22 N.Y.3d 359, 365–366, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013];People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ).
The written waiver of appeal, which the record reflects was signed and discussed in open court, is not included in the record on appeal.
Finally, given that County Court abided by its sentencing commitment, defendant's challenge to the sentence as harsh and excessive is precluded by her valid and unqualified appeal waiver ( see People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Martin, 105 A.D.3d 1266, 1267, 963 N.Y.S.2d 770 [2013] ).
ORDERED that the judgment is affirmed.
LAHTINEN, GARRY, ROSE and DEVINE, JJ., concur.