People v. Hammond

186 A.D.3d 1836

129 N.Y.S.3d 345 (Mem)

The PEOPLE of the State of New York, Respondent,

v.John F. HAMMOND II, Appellant.

110641

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 (Keith F. Schockmel of counsel), for appellant.

Jason M. Carusone, District Attorney, Lake George (Robert P. McCarty of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Mulvey, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered June 29, 2018, which revoked defendant's probation and imposed a sentence of imprisonment.

In satisfaction of a two-count indictment, defendant pleaded guilty to assault in the second degree and was sentenced to six months in jail and five years of probation. Defendant thereafter admitted that he violated the terms of his probation by, among other things, testing positive for the presence of THC, and County Court adjourned the matter to afford defendant an opportunity to demonstrate his ability to comply with the terms and conditions thereof. In conjunction with that admission, defendant was required to waive his right to appeal.

During the pending adjournment, defendant again violated the terms of his probation in numerous respects, including testing positive for the use of marihuana. Ultimately, defendant agreed to make certain admissions with the understanding that he would be sentenced to a prison term of three years followed by three years of post-release supervision. As part of that agreement, defendant again was required to waive his right to appeal. County Court imposed the contemplated prison term, and this appeal ensued.

We affirm. Although County Court's waiver colloquy "arguably could have been more expansive," the court nonetheless advised defendant that the waiver of the right to appeal was a condition of the proposed agreement, explained the separate and distinct nature of the right to appeal and confirmed that defendant was willing to relinquish that right in exchange for the favorable offer extended to him ( People v. Charles, 163 A.D.3d 1362, 1362, 82 N.Y.S.3d 221 [2018], lv denied 32 N.Y.3d 1063, 89 N.Y.S.3d 118, 113 N.E.3d 952 [2018] ). Additionally, defendant executed a written waiver in open court after conferring with counsel and indicated that he understood the ramifications thereof (see People v. King, 184 A.D.3d 909, 910, 123 N.Y.S.3d 556 [2020] ; People v. Bayne, 175 A.D.3d 1722, 1723, 107 N.Y.S.3d 192 [2019] ). Accordingly, and as we otherwise discern no infirmities in the waiver (compare People v....