People v. Burnett

186 A.D.3d 1837

129 N.Y.S.3d 344 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Deborah F. BURNETT, Also Known as Debra Burnett, Deborah Barnett and Debbie Turner, Appellant.

110651

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 4, 2020

Decided and Entered: September 24, 2020

Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.

Letitia James, Attorney General, New York City (Matthew B. Keller of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Aarons and Colangelo, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Warren County (Hall, J.), rendered September 27, 2018, convicting defendant upon her plea of guilty of the crimes of money laundering in the second degree, grand larceny in the second degree, scheme to defraud in the first degree and tax fraud in the third degree.

In full satisfaction of a 29–count indictment, defendant pleaded guilty to money laundering in the second degree, grand larceny in the second degree, scheme to defraud in the first degree and criminal tax fraud in the third degree. As contemplated by the plea agreement, defendant also executed a waiver of the right to appeal, as well as a confession of judgment totaling over $1.3 million. Consistent with the terms of the plea agreement, defendant was subsequently sentenced to concurrent prison terms of 3 to 9 years for her convictions of money laundering in the second degree and grand larceny in the second degree and to lesser concurrent prison terms for the remaining convictions. Defendant appeals, principally contending that her sentence is harsh and excessive.

Initially, defendant claims that her appeal waiver was invalid. We disagree. Defendant was advised that an appeal waiver was a condition of the plea agreement, and County Court further advised defendant of the trial-related rights that she was automatically forfeiting by pleading guilty and explained that the right to appeal was separate and distinct from those rights (see People v. Danzy, 182 A.D.3d 920, 921, 123 N.Y.S.3d 261 [2020], lv denied 35 N.Y.3d 1043, 127 N.Y.S.3d 857, 151 N.E.3d 539 [2020] ; People v. Gumbs, 182 A.D.3d 701, 702, 122 N.Y.S.3d 746 [2020], lv denied 35 N.Y.3d 1066, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Aug. 28, 2020] ). Defendant also executed in open court a written waiver of appeal — which was comprehensive and extended to the severity of the sentence — after conferring with counsel about its contents and stating that she understood that she was giving up her appellate rights (see People v. King, 184 A.D.3d 909, 910, 123 N.Y.S.3d 556 [2020] ; People v. Eaton, 182 A.D.3d 922, 923, 120 N.Y.S.3d 887 [2020] ). Accordingly, and discerning no other infirmities with the appeal waiver (compare People v. Thomas, 34 N.Y.3d 545, 562–563, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ), we conclude that defendant's combined oral and written waiver of the...