Opinion
110031
11-07-2019
The PEOPLE of the State of New York, Respondent, v. Lamont S. GAMBLE Jr., Appellant.
Rebecca L. Fox, Plattsburgh, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Kehm of counsel), for respondent.
Rebecca L. Fox, Plattsburgh, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Kehm of counsel), for respondent.
Before: Lynch, J.P., Clark, Devine and Pritzker, JJ.
MEMORANDUM AND ORDER
Lynch, J.P. Appeals (1) from a judgment of the County Court of Clinton County (Lawliss, J.), rendered October 17, 2017, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree, and (2) from a judgment of said court, rendered February 28, 2018 in Clinton County, which resentenced defendant.
In satisfaction of a two-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and waived his right to appeal. In accord with the plea agreement, he was sentenced to four years in prison followed by three years of postrelease supervision. After realizing that the maximum term of postrelease supervision that could be imposed was two years and obtaining the parties' consent to the modification of the sentence, County Court resentenced defendant to four years in prison followed by two years of postrelease supervision. Defendant appeals.
Initially, we find no merit to defendant's challenge to the validity of his appeal waiver. Defendant was advised that the appeal waiver was a condition of the plea agreement and, after he entered his plea, County Court described the consequences of such waiver and defendant indicated that he understood them. Then, in open court and after conferring with counsel, defendant executed a written appeal waiver that specifically explained that the right to appeal was separate and distinct from the other trial-related rights that he was forfeiting. After signing the waiver, defendant told County Court that he understood it and did not have any questions. Under these circumstances, we find that defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v. Boyette, 175 A.D.3d 751, 752, 103 N.Y.S.3d 870 [2019] ; People v. Collins, 53 A.D.3d 932, 933, 861 N.Y.S.2d 533 [2008], lv denied 11 N.Y.3d 831, 868 N.Y.S.2d 605, 897 N.E.2d 1089 [2008] ). Consequently, his challenge to the severity of the sentence is precluded (see People v. Franklin, 164 A.D.3d 1547, 1548, 83 N.Y.S.3d 742 [2018], lv denied 32 N.Y.3d 1171, 97 N.Y.S.3d 636, 121 N.E.3d 263 [2019] ; People v. Daniels, 139 A.D.3d 1256, 1257, 32 N.Y.S.3d 676 [2016], lv denied 28 N.Y.3d 1183, 52 N.Y.S.3d 709, 75 N.E.3d 101 [2017] ).
Defendant further contends that his counsel was ineffective because he failed to aggressively advocate for a more favorable sentence – namely, shock incarceration. This claim does not implicate the voluntariness of defendant's guilty plea and is foreclosed thereby (see People v. Williams, 145 A.D.3d 1188, 1191, 43 N.Y.S.3d 190 [2016], lv denied 29 N.Y.3d 1002, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017] ; People v. Watkins, 121 A.D.3d 1425, 1427, 995 N.Y.S.2d 803 [2014], lv denied 24 N.Y.3d 1124, 3 N.Y.S.3d 765, 27 N.E.3d 479 [2015] ), as well as by defendant's valid waiver of the right to appeal (see People v. Stebbins, 171 A.D.3d 1395, 1396, 98 N.Y.S.3d 670 [2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 698, 130 N.E.3d 1308 [2019] ; People v. Gumbs, 169 A.D.3d 1119, 1120, 92 N.Y.S.3d 758 [2019], lv denied 33 N.Y.3d 1105, 106 N.Y.S.3d 693, 130 N.E.3d 1303 [2019] ).
Clark, Devine and Pritzker, JJ., concur.
ORDERED that the judgments are affirmed.