Opinion
02-10-2017
The PEOPLE of the State of New York, Respondent, v. Jeremy A. WEATHERBEE, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for defendant-appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for defendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of, inter alia, felony driving while intoxicated (Vehicle and Traffic Law §§ 1192[3] ; 1193[1][c][i][A] ), defendant contends that his waiver of the right to appeal is invalid and does not in any event encompass his challenge to the severity of the sentence. We conclude that " ‘[t]he written waiver of the right to appeal, together with defendant's responses during the plea proceeding, establish that the waiver was voluntarily, knowingly, and intelligently entered’ " (People v. Smith, 122 A.D.3d 1420, 1420, 996 N.Y.S.2d 853, lv. denied 25 N.Y.3d 1172, 15 N.Y.S.3d 303, 36 N.E.3d 106 ; see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ). Contrary to defendant's contention, "[a]ny nonwaivable issues purportedly encompassed by the waiver ‘are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable’ " (People v. Neal, 56 A.D.3d 1211, 1211, 867 N.Y.S.2d 612, lv. denied 12 N.Y.3d 761, 876 N.Y.S.2d 712, 904 N.E.2d 849 ). Nonetheless, even assuming, arguendo, that defendant's challenge to the severity of his sentence is not encompassed by his valid waiver of the right to appeal (see e.g. People v. Leiser, 124 A.D.3d 1349, 1350, 997 N.Y.S.2d 580 ), we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, and SCUDDER, JJ., concur.