Opinion
200 KA 15–00424
02-09-2018
The PEOPLE of the State of New York, Respondent, v. Jose L. JOUBERT, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (JOSEPH R. PLUKAS OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (JOSEPH R. PLUKAS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Defendant appeals from a judgment convicting him upon a plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03[3] ). Contrary to defendant's contention, the waiver of the right to appeal was knowingly, intelligently, and voluntarily entered (see People v. Goodwin, 147 A.D.3d 1352, 1352, 46 N.Y.S.3d 448 [4th Dept. 2017], lv denied 29 N.Y.3d 1032, 62 N.Y.S.3d 301, 84 N.E.3d 973 [2017]; see generally People v. Sanders, 25 N.Y.3d 337, 340–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ). County Court ensured that defendant understood that "the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Brand, 112 A.D.3d 1320, 1321, 976 N.Y.S.2d 906 [4th Dept. 2013], lv denied 23 N.Y.3d 961, 988 N.Y.S.2d 568, 11 N.E.3d 718 [2014] ). Contrary to defendant's contention, the court was not required to advise defendant that the waiver of the right to appeal encompassed the court's suppression ruling (see Brand, 112 A.D.3d at 1321, 976 N.Y.S.2d 906 ; see generally People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ), and his challenge to the adverse suppression ruling is foreclosed by the valid waiver of the right to appeal (see Kemp, 94 N.Y.2d at 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ; People v. Carter, 147 A.D.3d 1540, 1540, 46 N.Y.S.3d 812 [4th Dept. 2017], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 299, 84 N.E.3d 971 [2017] ). We agree with defendant, however, that the waiver of the right to appeal does not encompass his challenge to the severity of the sentence. Although "it is evident that defendant waived [his] right to appeal [his] conviction, there is no indication in the record that defendant waived the right to appeal the harshness of [his] sentence " ( People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012] ; see People v. Gang, 145 A.D.3d 1566, 1566–1567, 44 N.Y.S.3d 666 [4th Dept. 2016], lv denied 29 N.Y.3d 997, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ). Nevertheless, we reject defendant's contention that his sentence is unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.