Opinion
106593
06-18-2015
The PEOPLE of The State of New York, Respondent, v. Marcus JACKSON, Appellant.
John Ferrara, Monticello, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
John Ferrara, Monticello, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: LAHTINEN, J.P., GARRY, EGAN JR. and ROSE, JJ.
Opinion
GARRY, J.Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered October 22, 2013, convicting defendant upon his plea of guilty of the crime of rape in the third degree.
Defendant entered a guilty plea to rape in the third degree, admitting that he had sexual intercourse with a 15–year–old girl when he was 22 years old. Pursuant to the plea agreement, he waived his right to appeal and was sentenced to a two-year prison term to be followed by 10 years of postrelease supervision. Defendant now appeals.
As an initial matter, the record reflects that defendant's appeal waiver was knowing, voluntary and intelligent (see 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, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ). County Court carefully explained the nature of the right being waived, including that it was separate and distinct from the trial-related rights automatically forfeited upon a guilty plea, ascertained that defendant had discussed it with his attorney and had no questions about it, and defendant signed a written waiver of appeal in open court (see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ; People v. Toback, 125 A.D.3d 1060, 1061, 3 N.Y.S.3d 444 [2015], lv. denied 25 N.Y.3d 993, 10 N.Y.S.3d 536, 32 N.E.3d 973 [2015] ). The valid appeal waiver precludes defendant's challenge to the sentence as harsh and excessive (see People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Handly, 122 A.D.3d 1007, 1008, 995 N.Y.S.2d 415 [2014] ).
Defendant's further claims that he was not advised that there would be mandatory surcharges and that County Court should have waived them were not raised before that court and, thus, are not preserved (see People v. Young, 81 A.D.3d 995, 996, 916 N.Y.S.2d 279 [2011], lv. denied 16 N.Y.3d 901, 926 N.Y.S.2d 36, 949 N.E.2d 984 [2011] ). In any event, we would have found no merit to these claims (see People v. Hoti, 12 N.Y.3d 742, 743, 878 N.Y.S.2d 645, 906 N.E.2d 373 [2009] ; People v. Guerrero, 12 N.Y.3d 45, 47, 876 N.Y.S.2d 687, 904 N.E.2d 823 [2009] ). Defendant's challenge to the indictment as duplicitous was forfeited by his guilty plea and appeal waiver, unless this constitutes a jurisdictional defect (see People v. Iannone, 45 N.Y.2d 589, 600–601, 412 N.Y.S.2d 110, 384 N.E.2d 656 [1978] ; People v. Motz, 52 A.D.3d 1029, 1030, 859 N.Y.S.2d 531 [2008], lv. denied 11 N.Y.3d 791, 866 N.Y.S.2d 618, 896 N.E.2d 104 [2008] ). The claim of duplicity (see People v. Alonzo, 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495 [2011] ) does not constitute a jurisdictional defect (see People v. Vega, 268 A.D.2d 686, 687, 701 N.Y.S.2d 483 [2000], lv. denied 95 N.Y.2d 839, 713 N.Y.S.2d 146, 735 N.E.2d 426 [2000] ) and, thus, this claim was forfeited (see People v. Cole, 118 A.D.3d 1098, 1099–1100, 987 N.Y.S.2d 247 [2014] ).
ORDERED that the judgment is affirmed.
LAHTINEN, J.P., EGAN JR. and ROSE, JJ., concur.