Opinion
109792
12-05-2019
The PEOPLE of the State of New York, Respondent, v. Adrian HOWELL, Appellant.
Del Atwell, East Hampton, for appellant. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Del Atwell, East Hampton, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark and Mulvey, JJ.
MEMORANDUM AND ORDER In full satisfaction of a multicount indictment, defendant agreed to plead guilty to one count of promoting prison contraband in the first degree with the understanding that he would be sentenced to a prison term of 3 to 6 years – said sentence to be served consecutively to one that he then was serving. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the plea agreement and thereafter was sentenced as a second felony offender to the contemplated term of imprisonment. This appeal ensued.
We affirm. To the extent that defendant challenges the validity of his waiver of the right to appeal, we find that defendant knowingly, intelligently and voluntarily waived such right. County Court explained the separate and distinct nature of the waiver and, in response to County Court's inquiry, defendant confirmed his understanding thereof (see People v. Hunt , 176 A.D.3d 1253, 1253, 111 N.Y.S.3d 134 [2019] ; People v. Fedderman , 170 A.D.3d 1279, 1280, 93 N.Y.S.3d 915 [2019] ; People v. Taft , 169 A.D.3d 1266, 1266–1267, 94 N.Y.S.3d 726 [2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 26, 129 N.E.3d 346 [2019] ). Additionally, defendant executed a detailed written waiver in open court, acknowledged that he had reviewed the waiver with counsel and indicated that he had no questions relative thereto (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. Ward , 171 A.D.3d 1312, 1313–1314, 95 N.Y.S.3d 668 [2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 49, 129 N.E.3d 369 [2019] ; People v. King , 163 A.D.3d 1352, 1352, 77 N.Y.S.3d 905 [2018], lvs denied 32 N.Y.3d 1201, 1204, 1206, 99 N.Y.S.3d 191, 206, 252, 122 N.E.3d 1104, 1119, 1164 [2019]). Under these circumstances, we find that defendant's waiver of the right to appeal was valid. In light of the valid appeal waiver, defendant's challenge to the severity of the sentence imposed is precluded (see People v. Bayne , 175 A.D.3d 1722, 1723, 107 N.Y.S.3d 192 [2019] ; People v. Greene , 171 A.D.3d 1407, 1408, 99 N.Y.S.3d 120 [2019] ). Defendant's remaining argument – that County Court failed to follow the procedures outlined in CPL 400.21 when sentencing defendant as a second felony offender – survives defendant's valid appeal waiver but is unpreserved for our review due to defendant's failure to raise any objection in this regard at the time of sentencing (see People v. Quinones , 162 A.D.3d 1402, 1402–1403, 79 N.Y.S.3d 760 [2018] ; People v. Stewart , 156 A.D.3d 1059, 1059, 65 N.Y.S.3d 484 [2017] ; People v. Hartfield , 151 A.D.3d 1116, 1118, 57 N.Y.S.3d 217 [2017], lv denied 29 N.Y.3d 1127, 64 N.Y.S.3d 677, 86 N.E.3d 569 [2017] ). Were we to address this issue, we would find it to be lacking in merit. The People provided a predicate felony statement prior to the imposition of sentence (see CPL 400.21[2] ), and defendant thereafter declined to controvert the contents thereof (see People v. Quinones , 162 A.D.3d at 1403, 79 N.Y.S.3d 760 ). Under these circumstances, we would find that there was substantial compliance with the requirements of CPL 400.21.
Garry, P.J., Lynch, Clark and Mulvey, JJ., concur.
ORDERED that the judgment is affirmed.