Opinion
03-24-2016
The PEOPLE of the State of New York, Respondent, v. Joseph J. BELILE, Appellant.
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant. Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Before: McCARTHY, J.P., GARRY, LYNCH, DEVINE and CLARK, JJ.
LYNCH, J.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered September 2, 2014, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree.
Following an altercation at the St. Lawrence County Correctional Facility on August 13, 2013 between defendant, an inmate and another inmate, defendant was indicted for assault in the second degree. The victim died of unrelated causes prior to trial and defendant's ensuing trial resulted in a hung jury. On the day scheduled for the retrial, defendant accepted a plea agreement that included a waiver of appeal, whereby he pleaded guilty to the reduced charge of attempted assault in the second degree. The plea agreement also satisfied several unrelated pending or potential criminal charges for which defendant was in and out of jail throughout 2013, and required restitution for each matter. Defendant was thereafter sentenced, consistent with the plea agreement, to a prison term of 2 to 4 years, as an admitted second felony offender, restitution was ordered and orders of protection were issued. Defendant now appeals.
Initially, contrary to defendant's contentions, we find that his combined oral and written waiver of appeal was knowing, voluntary and intelligent (see People v. Sanders, 25 N.Y.3d 337, 339–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; cf. People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ). The minutes of the plea proceedings reflect that when the terms of the plea agreement were outlined, County Court specified that an appeal waiver was a condition of the deal, and defendant confirmed that he understood the terms and thereafter agreed, without qualification, that he was voluntarily waiving his right to appeal. The court ascertained that defendant understood that he was giving up his right to appeal, explained the appellate rights that could not be waived and expressly advised him that the appeal waiver was separate and distinct from those rights that he automatically forfeited by his guilty plea (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Rubio, 133 A.D.3d 1041, 1042, 20 N.Y.S.3d 666 [2015] ). Defendant then executed a written waiver of appeal in open court, which adequately described the scope of the appellate rights that he was waiving and included defendant's acknowledgment that he had sufficient time to discuss the waiver with counsel. While the better practice would have been for the court to specifically ask defendant if he had discussed the appeal waiver with counsel and establish that he had read the written waiver before signing it (see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172 [2012] ; People v. Callahan, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] ; People v. Rabideau, 130 A.D.3d 1094, 1095, 12 N.Y.S.3d 386 [2015] ), considering "all [of] the relevant facts and circumstances surrounding the waiver," including defendant's experience (People v. Sanders, 25 N.Y.3d at 340, 12 N.Y.S.3d 593, 34 N.E.3d 344 [internal quotation marks and citation omitted] ), we are satisfied that the oral colloquy, combined with the written waiver, demonstrate his understanding and voluntary waiver of his right to appeal (see People v. Bradshaw, 18 N.Y.3d at 266–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ). Consequently, 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. Jackson, 129 A.D.3d 1342, 1342, 10 N.Y.S.3d 368 [2015] ).
Next, defendant argues that County Court incorrectly calculated the expiration date of the permanent orders of protection by failing to factor in jail time credit (see Penal Law § 70.30[3] ). While this issue survives the appeal waiver (see People v. Gardner, 129 A.D.3d 1386, 1387, 12 N.Y.S.3d 353 [2015] ), it was not preserved for our review due to defendant's failure to raise it before the sentencing court (see People v. Nieves, 2 N.Y.3d 310, 316–317, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ; People v. Hopper, 123 A.D.3d 1234, 1235, 999 N.Y.S.2d 223 [2014] ). Defendant may directly address this issue before the trial court, and, under the circumstances presented, we decline to exercise our interest of justice jurisdiction to take corrective action. Defendant's remaining claims have been reviewed and determined to lack merit.
ORDERED that the judgment is affirmed.
McCARTHY, J.P., GARRY, DEVINE and CLARK, JJ., concur.