Opinion
07-11-2024
The PEOPLE of the State of New York, Respondent, v. Robert J. DARLING, Appellant.
Tina K. Sodhi, Alternate Public Defender, Albany (Salvatore A. Russo of counsel), for appellant. P. David Soares, District Attorney, Albany (Daniel J. Young of counsel), for respondent.
Tina K. Sodhi, Alternate Public Defender, Albany (Salvatore A. Russo of counsel), for appellant.
P. David Soares, District Attorney, Albany (Daniel J. Young of counsel), for respondent.
Before: Clark, J.P., Pritzker, Reynolds Fitzgerald, Fisher and Powers, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Albany County (Andra Ackerman, J.), rendered September 25, 2022, which revoked defendant’s probation and imposed a sentence of imprisonment.
In January 2022, defendant pleaded guilty to driving while intoxicated and was sentenced to six months in jail and five years of probation. In August 2022, defendant was charged with violating his probation. In September 2022, defendant agreed to admit to a probation violation with the understanding that County Court would revoke his probation and resentence him to 2 to 6 years in prison. The terms of the agreement also required defendant to waive the right to appeal. Following defendant’s admission, County Court revoked defendant’s probation and resentenced him to a prison term of 2 to 6 years. Defendant appeals. Contrary to defendant’s contention, his waiver of the right to appeal - as set forth at the September 2022 proceeding - was knowing, intelligent and voluntary. The record reflects that County Court explained the nature of the waiver to defendant and that it was separate and distinct from the rights forfeited by his violation admission, and defendant affirmed his understanding thereof (see People v. Stevens, 166 A.D.3d 1167, 1167–1168, 87 N.Y.S.3d 728 [3d Dept. 2018], lv denied 32 N.Y.3d 1129, 93 N.Y.S.3d 267, 117 N.E.3d 826 [2018]; People v. Bartlett, 148 A.D.3d 1468, 1469, 49 N.Y.S.3d 313 [3d Dept. 2017]). County Court further advised defendant that certain appellate rights survive the appeal waiver regarding his violation admission and confirmed that defendant had discussed the waiver with counsel and that he understood and accepted it (see People v. Stevens, 166 A.D.3d at 1167–1168, 87 N.Y.S.3d 728; People v. Bailey, 157 A.D.3d 1133, 1134, 69 N.Y.S.3d 440 [3d Dept. 2018], lv denied 31 N.Y.3d 981, 77 N.Y.S.3d 658, 102 N.E.3d 435 [2018]). Defendant also executed a written waiver that similarly explained that some appellate rights survive the waiver (see People v. Defelice, 216 A.D.3d 1257, 1258, 188 N.Y.S.3d 788 [3d Dept. 2023], lv denied 40 N.Y.3d 933, 194 N.Y.S.3d 772, 215 N.E.3d 1213 [2023]). Accordingly, defendant’s appeal waiver was valid (see People v. Stevens, 166 A.D.3d at 1168, 87 N.Y.S.3d 728; People v. Bailey, 157 A.D.3d at 1134, 69 N.Y.S.3d 440), and, therefore, defendant was precluded from challenging the severity of his resentence (see People v. Huntley, 177 A.D.3d 1034, 1035, 109 N.Y.S.3d 919 [3d Dept. 2019], lv denied 34 N.Y.3d 1129, 118 N.Y.S.3d 546, 141 N.E.3d 502 [2020]; People, v. Bailey, 157 A.D.3d at 1134, 69 N.Y.S.3d 440).
Clark, J.P., Pritzker, Reynolds Fitzgerald, Fisher and Powers, JJ., concur.
ORDERED that the judgment is affirmed.