People v. Horton

167 A.D.3d 1166

87 N.Y.S.3d 912 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Steven A. HORTON Jr., Appellant.

109566

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

Calendar Date: October 26, 2018

Decided and Entered: December 13, 2018

Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant.

Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.

Before: Devine, J.P., Mulvey, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of St. Lawrence County (Champagne, J.), rendered November 21, 2016, convicting defendant upon his plea of guilty of the crime of strangulation in the second degree.

In full satisfaction of a two-count indictment, defendant agreed to plead guilty to one count of strangulation in the second degree with the understanding that, although sentencing would be left to County Court's discretion, the sentence imposed would not exceed a prison term of 2½ years followed by 1½ years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal and to cooperate in the prosecution of his codefendant. Following a detailed plea colloquy, defendant pleaded guilty as contemplated and thereafter was sentenced to a prison term of 2½ years followed by 1½ years of postrelease supervision. This appeal ensued.

Contrary to defendant's assertion, we find that he knowingly, intelligently and voluntarily waived his right to appeal. County Court advised defendant that the waiver of the right to appeal was separate and distinct from the trial-related rights that defendant automatically was forfeiting by pleading guilty, and defendant, who was aware that such waiver was a condition of the plea agreement, confirmed his understanding thereof (see People v. Jawan, 165 A.D.3d 1350, 1350, 82 N.Y.S.3d 905 [2018] ; People v. Selim, 164 A.D.3d 1576, 1576, 81 N.Y.S.3d 920 [2018] ). Additionally, defendant executed a written waiver in open court, wherein he expressly waived his right to challenge the sentence imposed as harsh and excessive and, in response to County Court's inquiries, indicated that he had read the written waiver, understood it contents, had no questions relative thereto and had been afforded sufficient time to confer with counsel (see People v. McDonald, 165 A.D.3d 1327, 1327–1328, 83 N.Y.S.3d 751 [2018] ; People v. Gilliam, 162 A.D.3d 1413, 1414, 79 N.Y.S.3d 754 [2018], lv denied 32 N.Y.3d 1064, 89 N.Y.S.3d 119, 113 N.E.3d 953, 2018 WL 6033460 [Oct. 3, 2018] ; People v. Brothers, 155 A.D.3d 1257, 1258, 63 N.Y.S.3d 907 [2017] ). Under these circumstances, we find that defendant validly waived his right to appeal (see People v. Adams, 165 A.D.3d 1343, 1344, 85 N.Y.S.3d 618 [2018] ; People v. Tucker, 161 A.D.3d 1481, 1482, 78 N.Y.S.3d 450 [2018], lv...