Opinion
06-16-2017
The PEOPLE of the State of New York, Respondent, v. Eugene STEWART, Defendant–Appellant. (Appeal No. 1.).
Kathleen A. Kugler, Conflict Defender, Lockport (Edward P. Perlman of Counsel), for defendant-appellant. Eugene Stewart, defendant-appellant pro se. Caroline A. Wojtaszek, District Attorney, Lockport (Thomas H. Brandt of Counsel), for respondent.
Kathleen A. Kugler, Conflict Defender, Lockport (Edward P. Perlman of Counsel), for defendant-appellant.
Eugene Stewart, defendant-appellant pro se.
Caroline A. Wojtaszek, District Attorney, Lockport (Thomas H. Brandt of Counsel), for respondent.
MEMORANDUM:
In appeal No. 1, defendant appeals from a judgment convicting him, upon his plea of guilty, of burglary in the third degree (Penal Law § 140.20 ) and, in appeal No. 2, he appeals from a judgment convicting him, upon his plea of guilty, of three counts of burglary in the third degree (id. ). In both appeals, defendant contends in his main brief that the aggregate sentence imposed by Supreme Court is unduly harsh and severe. In eliciting defendant's waiver of his right to appeal as an explicit condition of the plea agreement in each matter, the court advised defendant of the maximum sentences that could be imposed on each conviction (see People v. Lococo, 92 N.Y.2d 825, 827, 677 N.Y.S.2d 57, 699 N.E.2d 416 ), and the record establishes that defendant knowingly, intelligently, and voluntarily waived his right to appeal with respect to both his convictions and sentences (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ). We thus conclude that the valid waiver of the right to appeal encompasses defendant's challenge to the severity of the sentences imposed (see Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
In appeal No. 2, defendant contends in his pro se supplemental brief that his waiver of indictment and consent to be prosecuted under a superior court information (SCI) were jurisdictionally defective. We note that defendant's challenges to the jurisdictional requirements of the waiver of indictment and the SCI need not be preserved for our review (see People v. Boston, 75 N.Y.2d 585, 589, 555 N.Y.S.2d 27, 554 N.E.2d 64 n; People v. Tun Aung, 117 A.D.3d 1492, 1493, 984 N.Y.S.2d 733 ) and are not precluded by defendant's valid waiver of his right to appeal (see Tun Aung, 117 A.D.3d at 1493, 984 N.Y.S.2d 733 ; People v. Lugg, 108 A.D.3d 1074, 1074, 968 N.Y.S.2d 785 ). We nonetheless conclude that defendant's challenges lack merit (see People v. Attea, 84 A.D.3d 1700, 1701, 921 N.Y.S.2d 777 ; see generally CPL 195.10[1] [b] ; People v. D'Amico, 76 N.Y.2d 877, 879, 561 N.Y.S.2d 411, 562 N.E.2d 488 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
CENTRA, J.P., LINDLEY, DeJOSEPH, NEMOYER, and TROUTMAN, JJ., concur.