People v. Lawton

179 A.D.3d 1383

117 N.Y.S.3d 773

The PEOPLE of the State of New York, Respondent,

v.Rashene T. LAWTON, Appellant.

109342, 109343

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

Calendar Date: January 10, 2020

Decided and Entered: January 30, 2020

Linda B. Johnson, East Greenbush, for appellant.

Mary Pat Donnelly, District Attorney, Troy (Jacob B. Sher of counsel), for respondent.

Before: Garry, P.J., Mulvey, Devine, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Mulvey, J.

In satisfaction of a 16–count indictment and a superior court information, defendant pleaded guilty to criminal possession of a weapon in the second degree and criminal sale of a controlled substance in the third degree, and waived the right to appeal. County Court sentenced defendant, as a second felony offender, to an aggregate prison sentence of eight years, to be followed by five years of postrelease supervision. Defendant appeals.

We affirm. Contrary to defendant's contention, his waiver of the right to appeal was valid. County Court advised defendant that the waiver of the right to appeal was a condition of the plea agreement. The court also distinguished the right to appeal from the rights automatically forfeited by a guilty plea and affirmed that defendant had discussed the waiver with counsel and understood its ramifications. Defendant further executed separate written appeal waivers for each conviction that included assurances that defendant had discussed the waiver with counsel. Based on the foregoing, defendant knowingly, intelligently and voluntarily waived the right to appeal (see People v. Horton, 173 A.D.3d 1342, 1343, 102 N.Y.S.3d 761 [2019], lv denied 34 N.Y.3d 932, 109 N.Y.S.3d 701, 133 N.E.3d 401 [2019] ). Defendant is thus precluded from challenging the agreed-upon sentence as harsh and excessive (see People v. Thacker, 173 A.D.3d 1360, 1361, 102 N.Y.S.3d 764 [2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 730, 133 N.E.3d 434 [2019] ; People v. Haggray, 172 A.D.3d 1825, 1825, 99 N.Y.S.3d 721 [2019], lv denied 34 N.Y.3d 932, 109 N.Y.S.3d 755, 133 N.E.3d 462 [2019] ).

Defendant's challenge to the voluntariness of his plea survives the valid appeal waiver but is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v. King, 172 A.D.3d 1763, 1764, 100 N.Y.S.3d 801 [2019] ; People v. Stebbins, 171 A.D.3d 1395, 1396–1397, 98 N.Y.S.3d 670 [2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 698, 130 N.E.3d 1308 [2019] ). To the extent that defendant relies on a pro se letter he sent to County Court prior to sentencing stating that he would like to withdraw his plea because his counsel did not make him aware that he was pleading guilty to a violent felony, the letter did not constitute a motion to withdraw his plea as it "contained no sworn allegations of fact, no citation to case law...