People v. Perry

213 A.D.3d 1000

182 N.Y.S.3d 389

The PEOPLE of the State of New York, Respondent,

v.Dalton M. PERRY, Appellant.

111860

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

Calendar Date: January 6, 2023

Decided and Entered: February 2, 2023

Rural Law Center of New York, Inc., Castleton (Kristin A. Bluvas of counsel), for appellant.

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

Before: Garry, P.J., Lynch, Pritzker, Reynolds Fitzgerald and Fisher, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of St. Lawrence County (Jerome J. Richards, J.), rendered March 28, 2019, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with one count of criminal possession of a controlled substance in the third degree. Although initially afforded an opportunity to plead guilty to the charged crime in exchange for a prison term of four years, defendant sought admission to a judicial diversion program. As a result, defendant pleaded guilty with the understanding that, if he was accepted into and successfully completed the program, he would be sentenced to five years of straight probation; if unsuccessful, defendant could – if adjudicated a second felony offender – face up to 12 years of incarceration followed by a period of postrelease supervision or – if found to be a persistent felony offender – could face life imprisonment. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the plea agreement and thereafter was accepted into a judicial diversion program. After twice violating the rules of the treatment facility into which he had been placed, defendant waived a hearing, admitted to violating the terms of his placement and was terminated from the judicial diversion program. County Court thereafter sentenced defendant, as a second felony offender, to a prison term of eight years followed by three years of postrelease supervision. This appeal ensued.

We affirm. Preliminarily, to the extent that defendant suggests that, inasmuch as he pleaded guilty to the entire superior court information, requiring him to waive his right to appeal was improper (see People v. Nicelli, 74 A.D.3d 1235, 1236–1237, 904 N.Y.S.2d 119 [2d Dept. 2010] ), we disagree, as the plea agreement afforded defendant a considerable benefit by virtue of the opportunity to participate in a judicial diversion program and the possibility of being sentenced to straight probation (compare People v. Crump, 107 A.D.3d 1046, 1047, 966 N.Y.S.2d 282 [3d Dept. 2013], lv denied 21 N.Y.3d 1014, 971 N.Y.S.2d 497, 994 N.E.2d 393 [2013] ).

As to the validity of the waiver itself, the record reflects that County Court explained that the waiver of appeal was separate and distinct from the trial-related rights that defendant would be forfeiting by pleading guilty, and the court expressly delineated the appellate rights that survived the waiver (see People v. Cook, 208 A.D.3d 1508, 1509, 174 N.Y.S.3d 517 [3d Dept. 2022] ; People v. Coombs, 208 A.D.3d 1507, 1508, 174 N.Y.S.3d 508 [3d Dept. 2022] ). Additionally, defendant executed a detailed written waiver in open court, which again outlined the appellate rights that he retained, and defendant, in turn, advised County Court that he had read the written waiver, understood its...