Opinion
109629
04-11-2019
Paul J. Connolly, Delmar, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Paul J. Connolly, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Clark, J.P., Mulvey, Devine, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDERDefendant was charged in a seven-count indictment with predatory sexual assault, criminal sexual act in the first degree, strangulation in the second degree as a sexually motivated felony, assault in the second degree as a sexually motivated felony, criminal possession of a weapon in the third degree, unlawful imprisonment in the second degree and menacing in the second degree ( 141 A.D.3d 853, 853, 35 N.Y.S.3d 557 [2016] ). The charges stemmed from an incident during which defendant forcibly compelled the victim to perform oral sex on him and, in the course thereof, brandished a knife and stabbed, choked and threatened to kill the victim ( id. ). In full satisfaction of the charges, defendant pleaded guilty to the reduced charge of attempted criminal sexual act in the first degree and, in connection therewith, waived his right to appeal. Defendant was thereafter sentenced, in accordance with the plea agreement, to eight years in prison and 15 years of postrelease supervision. Defendant appeals.
In 2014, defendant, following a jury trial, was convicted of six of the counts specified in the indictment; however, on appeal, this Court reversed the judgment of conviction and remitted for a new trial (141 A.D.3d at 859–861, 35 N.Y.S.3d 557 ).
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We affirm. Contrary to defendant's contention, the plea colloquy demonstrates that he knowingly, voluntarily and intelligently waived his right to appeal. At the outset of the plea proceeding, County Court advised defendant that the waiver of the right to appeal was a condition of the plea agreement, and the record demonstrates that defendant agreed to the terms of the plea bargain (see People v. Peryea , 169 A.D.3d 1120, 1120, 93 N.Y.S.3d 456 [2019] ; People v. Cherry , 166 A.D.3d 1220, 1221, 86 N.Y.S.3d 355 [2018] ; People v. Koontz , 166 A.D.3d 1215, 1216, 86 N.Y.S.3d 357 [2018], lv denied 32 N.Y.3d 1206, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 WL 1199866 [Feb. 6, 2019] ). County Court explained to defendant that, although he would ordinarily retain the right to appeal his conviction and sentence, the plea agreement required that he waive his right to appeal, and the court listed a "few reviewable issues [that] survive a valid appeal waiver" ( People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Lago , 168 A.D.3d 1281, 1281, 91 N.Y.S.3d 818 [2019] ; People v. Carter , 166 A.D.3d 1212, 1213, 88 N.Y.S.3d 285 [2018] ). In addition, defendant executed in open court a written appeal waiver stating that he was voluntarily, knowingly and intelligently waiving his right to appeal, which was beyond those trial-related rights that he was giving up by entering a guilty plea, and that he was relinquishing his right to appeal all matters relating to the conviction and sentence (see People v. Moore , 167 A.D.3d 1158, 1159, 89 N.Y.S.3d 483 [2018] ; People v. Williams , 167 A.D.3d 1084, 1085, 89 N.Y.S.3d 440 [2018], lv denied 32 N.Y.3d 1211, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 WL 1200587 [Feb. 7, 2019] ; People v. McClain , 165 A.D.3d 1345, 1345, 86 N.Y.S.3d 230 [2018] ). Although County Court never confirmed with defendant that he read and understood the written appeal waiver that he executed in open court, defendant acknowledged during the plea colloquy that defense counsel had reviewed and discussed the written appeal waiver with him (see People v. Nichols , 155 A.D.3d 1186, 1187, 63 N.Y.S.3d 254 [2017] ; People v. Empey , 144 A.D.3d 1201, 1203, 41 N.Y.S.3d 164 [2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ). Accordingly, defendant's argument that his sentence is harsh and excessive is precluded by his valid waiver of the right to appeal (see People v. Lopez , 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Freeman , 169 A.D.3d 1115, 1116, 92 N.Y.S.3d 496 [2019] ; People v. Watkins , 166 A.D.3d 1239, 1240, 88 N.Y.S.3d 281 [2018] ).
Clark, J.P., Mulvey, Devine, Aarons and Rumsey, JJ., concur.
ORDERED that the judgment is affirmed.