Opinion
106337.
12-24-2015
The PEOPLE of the State of New York, Respondent, v. DeJuan J. BUTLER, Also Known as David Barksdale, Appellant.
John A. Cirando, Syracuse, for appellant. Mary E. Rain, District Attorney, Canton (Abigail Hind of counsel), for respondent.
John A. Cirando, Syracuse, for appellant.
Mary E. Rain, District Attorney, Canton (Abigail Hind of counsel), for respondent.
Opinion
DEVINE, J.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered November 15, 2013, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and waived his right to appeal. County Court thereafter imposed the agreed-upon sentence of seven years in prison to be followed by three years of postrelease supervision. Defendant now appeals.
We affirm. We reject defendant's contention that his waiver of the right to appeal was invalid. County Court distinguished the right to appeal from the rights automatically forfeited upon a guilty plea, and defendant acknowledged that he understood the ramifications of the waiver and executed a written waiver in open court. Accordingly, we conclude that he knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v. Neithardt, 127 A.D.3d 1502, 1502, 8 N.Y.S.3d 691 2015; People v. Brown, 125 A.D.3d 1049, 1049, 2 N.Y.S.3d 699 2015 ). The valid appeal waiver precludes his claim that his sentence is harsh and excessive (see People v. Almeida, 127 A.D.3d 1499, 1500, 7 N.Y.S.3d 696 2015, lv. denied 26 N.Y.3d 1006, 20 N.Y.S.3d 547, 42 N.E.3d 217 2015; People v. Turner, 126 A.D.3d 1228, 1229 2015 ), as well as his challenge to County Court's denial of his application to redact certain information contained in the presentence investigation report (see People v. Guyette, 121 A.D.3d 1430, 1431, 995 N.Y.S.2d 395 2014; People v. Abdul, 112 A.D.3d 644, 645, 976 N.Y.S.2d 187 2013, lv. denied 22 N.Y.3d 1136, 983 N.Y.S.2d 495, 6 N.E.3d 614 2014 ).
Defendant's claims that his guilty plea was not voluntary and that the plea allocution was not factually sufficient are not preserved for our review as the record does not reflect that he made an appropriate postallocution motion (see People v. Pickett, 128 A.D.3d 1275, 1276, 9 N.Y.S.3d 737 2015, lvs denied 26 N.Y.3d 930, 933, 17 N.Y.S.3d 96, 38 N.E.3d 842 2015; People v. Martin, 125 A.D.3d 1054, 1054, 3 N.Y.S.3d 187 2015, lv. denied 26 N.Y.3d 932, 17 N.Y.S.3d 94, 38 N.E.3d 840 2015 ). Defendant “made no statements during the plea colloquy that would bring this matter within the narrow exception to the preservation requirement” (People v. Pickett, 128 A.D.3d at 1276, 9 N.Y.S.3d 737).
Finally, we reject defendant's contention that he was illegally sentenced as a second violent felony offender, although he correctly notes that the People submitted a predicate felony offender statement that erroneously indicated that he was subject to being sentenced as a second violent felony offender (see Penal Law § 70.041[a] ). The sentencing minutes reflect that County Court properly sentenced defendant as a second felony drug offender previously convicted of a violent felony (see Penal Law § 70.704[b][i]; People v. Feliciano, 108 A.D.3d 880, 881 n., 969 N.Y.S.2d 221 2013, lv. denied 22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386 2013 ). While the judgment is therefore affirmed, we note that the uniform sentence and commitment form incorrectly reflects that defendant was sentenced as a second felony offender and it must be amended to reflect his status as a second felony drug offender with a prior violent felony conviction (see People v. Labaff, 127 A.D.3d 1471, 1472, 7 N.Y.S.3d 682 2015, lv. denied 26 N.Y.3d 931 2015; People v. Feliciano, 108 A.D.3d at 881, 969 N.Y.S.2d 221 n).
ORDERED that the judgment is affirmed, and matter remitted for entry of an amended uniform sentence and commitment form.
PETERS, P.J., GARRY, EGAN JR. and ROSE, JJ., concur.