Opinion
No. 113164
11-14-2024
The People of the State of New York, Respondent, v. James C. Sitts, Appellant.
Rural Law Center of New York, Inc., Plattsburgh (Keith F. Schockmel of counsel), for appellant. John M. Muehl, District Attorney, Cooperstown (Christopher James Di Donna of counsel), for respondent.
Calendar Date: October 15, 2024
Rural Law Center of New York, Inc., Plattsburgh (Keith F. Schockmel of counsel), for appellant.
John M. Muehl, District Attorney, Cooperstown (Christopher James Di Donna of counsel), for respondent.
Before: Clark, J.P., Pritzker, Lynch, Fisher and Powers, JJ.
Powers, J.
Appeal from a judgment of the County Court of Otsego County (John F. Lambert, J.), rendered August 2, 2021, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree.
Defendant was charged in a six-count indictment with two counts of burglary in the second degree, grand larceny in the third degree and three counts of grand larceny in the fourth degree. Following numerous unsuccessful motions to, among other things, dismiss the indictment on speedy trial grounds, defendant ultimately pleaded guilty to the reduced charge of attempted burglary in the second degree and agreed to waive his right to appeal. In accordance with the terms of the plea agreement, County Court sentenced defendant, as a second felony offender, to a prison term of five years, to be followed by five years of postrelease supervision. Defendant appeals.
We affirm. Contrary to defendant's contention, the record reflects that his waiver of his right to appeal is valid. The combined oral waiver and written waiver, which defendant read and reviewed with counsel during the plea allocution, made clear that the appeal waiver was separate and distinct from the rights waived by defendant's guilty plea and that certain nonwaivable appellate rights survived, enumerating specific examples. Defendant assured County Court that he had sufficient time to confer with counsel and understood the nature and ramifications of the waiver. Upon review, we are satisfied that defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v Lopez, 6 N.Y.3d 248, 256 [2006]; People v Pepe, 229 A.D.3d 1007, 1007-1008 [3d Dept 2024]; People v Joseph, 227 A.D.3d 1233, 1234-1235 [3d Dept 2024]; compare People v Mitchell, 228 A.D.3d 997, 998 [3d Dept 2024]; People v Thompson, 157 A.D.3d 1141, 1141 [3d Dept 2018]). Given the valid appeal waiver, defendant's challenge to the perceived severity of the sentence is precluded (see People v Pepe, 229 A.D.3d at 1008; People v Brunson, 185 A.D.3d 1300, 1300 [3d Dept 2020], lv denied 36 N.Y.3d 928 [2020]), as is his assertion that he was denied his statutory right to a speedy trial (see People v Wint, 222 A.D.3d 1050, 1051 [3d Dept 2023], lv denied 41 N.Y.3d 945 [2024]; People v Kidd, 210 A.D.3d 1148, 1149-1150 [3d Dept 2022], lv denied 39 N.Y.3d 1073 [2023]; People v Dennis, 206 A.D.3d 1369, 1371 [3d Dept 2022]).
Although defendant read and reviewed with counsel the written appeal waiver during the plea allocution, assuring County Court that he had no questions and understood its contents, it was not executed until counsel again reviewed it with defendant at sentencing.
Clark, J.P., Pritzker, Lynch and Fisher, JJ., concur.
ORDERED that the judgment is affirmed.