Opinion
108876
07-26-2018
The PEOPLE of the State of New York, Respondent, v. Smith CHARLES, Appellant.
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant. Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), for respondent.
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), for respondent.
Before: Garry, P.J., McCarthy, Egan Jr., Lynch and Clark, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered September 21, 2016, convicting defendant upon his plea of guilty of the crimes of criminal possession of a forged instrument in the second degree, identity theft in the second degree and unlawful possession of personal identification information in the third degree.
In full satisfaction of a 71–count indictment, defendant was offered the opportunity to plead guilty to one count of criminal possession of a forged instrument in the second degree, one count of identity theft in the second degree and one count of unlawful possession of personal identification information in the third degree with the understanding that he would be sentenced to 30 days in the local jail and five years of probation. The negotiated plea agreement also required defendant to waive his right to appeal. Defendant subsequently pleaded guilty to the enumerated offenses, and County Court imposed the agreed-upon concurrent sentences. This appeal ensued.
We affirm. Although County Court's explanation of the waiver of the right to appeal arguably could have been more expansive, the court made clear that an appeal waiver was a condition of the plea agreement (see People v. Venable, 161 A.D.3d 1315, 1315, 73 N.Y.S.3d 459 [2018] ; People v. Sharpe, 159 A.D.3d 1192, 1193, 72 N.Y.S.3d 648 [2018], lv denied 31 N.Y.3d 1121, 81 N.Y.S.3d 381, 106 N.E.3d 764, 2018 WL 3392993 [June 12, 2018] ), explained that the right to appeal was "a separate and distinct right" (see People v. Gilmour, 160 A.D.3d 1219, 1220, 71 N.Y.S.3d 913 [2018] ; People v. Lester, 141 A.D.3d 951, 952–953, 36 N.Y.S.3d 288 [2016], lv denied 28 N.Y.3d 1185, 52 N.Y.S.3d 712, 75 N.E.3d 104 [2017] ) and confirmed that defendant was willing to "give up this separate right of appeal" in exchange for the favorable plea agreement. Additionally, defendant signed a written waiver in open court, indicated that he had discussed the waiver with counsel and assured County Court that he understood the nature of the right being forfeited (see People v. Edwards, 160 A.D.3d 1280, 1281, 75 N.Y.S.3d 663 [2018] ; People v. Cayon, 158 A.D.3d 946, 947, 68 N.Y.S.3d 777 [2018], lv denied 31 N.Y.3d 1080,79 N.Y.S.3d 101, 103 N.E.3d 1248, 2018 WL 2946011 [May 30, 2018] ). Under these circumstances, the combined oral colloquy and written appeal waiver establish that defendant knowingly, intelligently and voluntarily waived his right to appeal his conviction and sentence (see People v. Venable, 161 A.D.3d at 1315, 73 N.Y.S.3d 459 ; People v. Edwards, 160 A.D.3d at 1281, 75 N.Y.S.3d 663 ; People v. Dutcher, 156 A.D.3d 1122, 1122, 67 N.Y.S.3d 354 [2017] ). Accordingly, his challenge to the agreed-upon sentences imposed is precluded (see People v. Edwards, 160 A.D.3d at 1281, 75 N.Y.S.3d 663 ; People v. Cayon, 158 A.D.3d at 947, 68 N.Y.S.3d 777 ).
ORDERED that the judgment is affirmed.
Garry, P.J., McCarthy, Egan Jr., Lynch and Clark, JJ., concur.