Opinion
109940
10-11-2018
The PEOPLE of the State of New York, Respondent, v. Karen L. JAWAN, Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel, Syracuse), for appellant. Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel, Syracuse), for appellant.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.
Before: McCarthy, J.P., Lynch, Clark, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
McCarthy, J.P.
Appeal from a judgment of the County Court of St. Lawrence County (Champagne, J.), rendered January 31, 2017, convicting defendant upon her plea of guilty of the crime of grand larceny in the second degree.
In satisfaction of multiple charges stemming from her misappropriation of approximately $269,000 from her employer, defendant waived indictment, pleaded guilty to grand larceny in the second degree and waived her right to appeal. County Court sentenced defendant in accordance with the terms of the plea agreement to a prison term of 2 to 6 years. Defendant appeals.
We affirm. Contrary to defendant's contention, the record reflects that defendant was aware, prior to pleading guilty, that the waiver of the right to appeal was a condition of the plea agreement. Regarding the waiver of the right to appeal, County Court adequately explained that it was separate and distinct from the rights forfeited by the plea agreement and defendant acknowledged her understanding thereof. In addition, defendant executed a written appeal waiver and, upon inquiry by the court, assured the court that she had sufficient time to read the document and discuss it with counsel and that she understood it. As such, we find that defendant's appeal waiver was knowing, voluntary and intelligent (see People v. Cayon , 158 A.D.3d 946, 947, 68 N.Y.S.3d 777 [2018], lv denied 31 N.Y.3d 1080, 79 N.Y.S.3d 101, 103 N.E.3d 1248 [2018] ; People v. Savage , 158 A.D.3d 854, 855, 70 N.Y.S.3d 602 [2018] ).
Although the valid appeal waiver does not preclude defendant's challenge to the voluntariness of the plea or her claim of ineffective assistance of counsel to the extent that it impacts the voluntariness of the plea, such issues are unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion (see People v. Haverly , 161 A.D.3d 1483, 1484, 74 N.Y.S.3d 774 [2018], lv denied 32 N.Y.3d 938, 84 N.Y.S.3d 864, 109 N.E.3d 1164 [Aug. 15, 2018] ; People v. Tucker, 161 A.D.3d 1481, 1482, 78 N.Y.S.3d 450 [2018], lv denied 31 N.Y.3d 1153, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018] ; People v. Edwards, 160 A.D.3d 1280, 1281, 75 N.Y.S.3d 663 [2018], lv denied 31 N.Y.3d 1144, 83 N.Y.S.3d 426, 108 N.E.3d 500 [2018] ). Further, the narrow exception to the preservation requirement is inapplicable as defendant made no statements during the plea colloquy that cast doubt on her plea of guilty or otherwise called into question the voluntariness of the plea (see People v. Haverly , 161 A.D.3d at 1484, 74 N.Y.S.3d 774 ; People v. Tucker , 161 A.D.3d at 1482, 78 N.Y.S.3d 450 ). Finally, defendant's challenge to the severity of the sentence imposed is foreclosed by her valid appeal waiver (see People v. Tucker , 161 A.D.3d at 1482, 78 N.Y.S.3d 450 ; People v. Rutigliano , 159 A.D.3d 1280, 1280, 73 N.Y.S.3d 674 [2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764 [2018] ).
ORDERED that the judgment is affirmed.
Lynch, Clark, Mulvey and Rumsey, JJ., concur.