Opinion
112001
09-22-2022
The PEOPLE of the State of New York, Respondent, v. Michael J. COOK, Appellant.
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant. Gary M. Pasqua, District Attorney, Canton (Alexander A.V. Nichols of counsel), for respondent.
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Alexander A.V. Nichols of counsel), for respondent.
Before: Lynch, J.P., Aarons, Pritzker, Fisher and McShan, JJ.
MEMORANDUM AND ORDER Appeal from a judgment of the County Court of St. Lawrence County (Jerome J. Richards, J.), rendered November 20, 2019, convicting defendant upon his plea of guilty of the crime of burglary in the third degree. Defendant pleaded guilty to burglary in the third degree as charged in a single-count indictment, admitting that he unlawfully entered a building containing a paper mill with the intent to steal and did steal once inside. In exchange, County Court committed to imposing a prison sentence of 3½ to 7 years and foregoing persistent felony offender sentencing. Pursuant to the terms of the plea agreement, defendant was required to waive his right to appeal, and executed a written waiver of appeal. The court thereafter imposed the agreed-upon prison sentence upon defendant, as an acknowledged second felony offender. Defendant appeals.
We affirm. Defendant argues that the waiver of appeal is invalid and challenges the sentence as harsh and excessive. We are not persuaded. A waiver of appeal was expressly made a condition of the plea agreement and, during the plea allocution, County Court made clear that the waiver of appeal was separate and distinct from the trial-related rights automatically forfeited by the guilty plea (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ) and that some rights survive the appeal waiver (see People v. Thomas, 34 N.Y.3d 545, 558–563, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ). Defendant then reviewed with defense counsel the written waiver of appeal, which likewise distinguished the appeal waiver and provided examples of issues that survive it. Defendant acknowledged that he understood the waiver, had an opportunity to discuss it with counsel and had no questions, and signed it in open court. Under these circumstances, the combined oral and written waiver of appeal was a knowing, voluntary and intelligent choice (see People v. Thomas, 34 N.Y.3d at 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ; People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Purnell, 186 A.D.3d 1834, 1834, 129 N.Y.S.3d 358 [3d Dept 2020], lv denied 36 N.Y.3d 975, 138 N.Y.S.3d 481, 162 N.E.3d 710 [2020] ). Given defendant's valid waiver of appeal, he is precluded from challenging the sentence as unduly harsh or severe (see People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Ballester–Perez, 195 A.D.3d 1234, 1235, 145 N.Y.S.3d 871 [3d Dept. 2021], lv denied 37 N.Y.3d 970, 150 N.Y.S.3d 685, 172 N.E.3d 797 [2021] ). Defendant's remaining claims have been reviewed and found to be lacking in merit.
Lynch, J.P., Aarons, Pritzker, Fisher and McShan, JJ., concur.
ORDERED that the judgment is affirmed.