Opinion
05-23-2024
The PEOPLE of the State of New York, Respondent, v. James DELOSH, Appellant
Rural Law Center of New York, Inc., Plattsburgh (Keith F. Schockmel of counsel), for appellant, and appellant pro se. Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.
Rural Law Center of New York, Inc., Plattsburgh (Keith F. Schockmel of counsel), for appellant, and appellant pro se.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.
Before: Egan Jr., J.P., Aarons, Lynch, Reynolds Fitzgerald and Powers, JJ.
MEMORANDUM AND ORDER
Aarons, J.
Appeals (1) from a judgment of the County Court of St. Lawrence County (John F. Richey, J.), rendered September 16, 2021, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the third degree, and (2) from a judgment of said court, rendered September 16, 2021, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the third degree.
Defendant was charged in two indictments, handed up in September 2020 and December 2020, with various drug-related crimes. Pursuant to a plea agreement, defendant pleaded guilty to attempted criminal possession of a controlled substance in the third degree in satisfaction of the first indictment and pleaded guilty to attempted criminal possession of a controlled substance in the third degree in satisfaction of the second indictment, and he agreed to waive the right to appeal. Defendant also signed a stipulation forfeiting $3,076 that was allegedly seized in relation to the charged crimes. County Court sentenced defendant, as a second felony offender, to two concurrent prison terms of 3½ years, to be followed by three years of postrelease supervision. Defendant appeals.
[1, 2] We affirm. Contrary to defendant’s contention, his appeal waiver is valid. County Court advised defendant that an appeal waiver was a condition of his plea agreement, explained the separate and distinct nature of the appeal waiver and enumerated certain rights that survive the waiver, and defendant affirmed his understanding thereof (see People v. Foote, 210 A.D.3d 1311, 1312, 178 N.Y.S.3d 634 [3d Dept. 2022]; People v. Bumham, 206 A.D.3d 1368, 1368-1369, 168 N.Y.S.3d 914 [3d Dept. 2022], lv denied 38 N.Y.3d 1187, 176 N.Y.S.3d 217, 197 N.E.3d 497 [2022]). Additionally, defendant executed a detailed written waiver that expressly indicated that he was waiving any challenge to the severity of his sentence and also delineated various appellate rights that he retained (see People v. Rayder, 214 A.D.3d 1124, 1124, 183 N.Y.S.3d 773 [3d Dept. 2023]; People v. Bass, 189 A.D.3d 1977, 1978, 137 N.Y.S.3d 834 [3d Dept. 2020], lv denied 36 N.Y.3d 1095, 144 N.Y.S.3d 110, 167 N.E.3d 1245 [2021]). In response to County Court’s inquiries, defendant confirmed that he had read and discussed the written waiver with counsel, understood its contents and had no questions relative thereto (see People v. Robinson, 213 A.D.3d 1002, 1003, 181 N.Y.S.3d 470 [3d Dept. 2023]; People v. Grimshaw, 207 A.D.3d 959, 959, 170 N.Y.S.3d 521 [3d Dept. 2022]). Under these circumstances, we conclude that defendant knowingly, intelligently and voluntarily waived the right to appeal (see People v. Dobbs, 217 A.D.3d 1276, 1277, 192 N.Y.S.3d 308 [3d Dept. 2023]; People v. Rayder, 214 A.D.3d at 1124, 183 N.Y.S.3d 773; People v. Grimshaw, 207 A.D.3d at 959, 170 N.Y.S.3d 521). Given defendant’s valid appeal waiver, his challenge to the severity of his sentence is foreclosed (see People v. Gayle, 221 A.D.3d 1061, 1062, 199 N.Y.S.3d 720 [3d Dept. 2023]; People v. Williams, 208 A.D.3d 1499, 1500, 174 N.Y.S.3d 286 [3d Dept. 2022]).
[3–5] Defendant’s challenge to County Court’s imposition of mandatory surcharges and fees for each of the two convictions is precluded by his valid appeal waiver (see People v. Archer, 171 A.D.3d 1404, 1405, 97 N.Y.S.3d 541 [3d Dept. 2019], lv denied 33 N.Y.3d 1066, 105 N.Y.S.3d 4, 129 N.E.3d 324 [2019]; People v. Frazier, 57 A.D.3d 1460, 1461, 869 N.Y.S.2d 826 [4th Dept. 2008], lv denied 12 N.Y.3d 783, 879 N.Y.S.2d 60, 906 N.E.2d 1094 [2009]; see also People v. Morales, 119 A.D.3d 1082, 1084, 990 N.Y.S.2d 144 [3d Dept. 2014], lv denied 24 N.Y.3d 1086, 1 N.Y.S.3d 13, 25 N.E.3d 350 [2014]), and is otherwise unpreserved by his failure to raise an objection to the imposition of the surcharges and fees at the time they were imposed or move for resentencing (see People v. Stebbins, 171 A.D.3d 1395, 1397, 98 N.Y.S.3d 670 [3d Dept. 2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 698, 130 N.E.3d 1308 [2019]; People v. Dunn, 254 A.D.2d 511, 512, 680 N.Y.S.2d 125 [3d Dept. 1998], lv denied 92 N.Y.2d 1031, 684 N.Y.S.2d 496, 707 N.E.2d 451 [1998], cert denied 527 U.S. 1024, 119 S.Ct. 2372, 144 L.Ed.2d 775 [1999]; People v. Burt, 142 A.D.2d 794, 794, 531 N.Y.S.2d 131 [3d Dept. 1988]). Defendant’s contention in his supplemental pro se brief that the forfeiture of $3,076 was unauthorized is waived both by his written forfeiture stipulation and his valid appeal waiver (see People v. Vellcm, 128 A.D.3d 1274, 1275, 10 N.Y.S.3d 347 [3d Dept. 2015], lv denied 26 N.Y.3d 1043, 22 N.Y.S.3d 173, 43 N.E.3d 383 [2015]; People v. Carbone, 101 A.D.3d 1232, 1233, 956 N.Y.S.2d 221 [3d Dept. 2012]).
[6] Finally, although County Court purportedly sentenced defendant as a second felony offender, there is a disparity between the sentences Imposed – concurrent determinate sentences of 3½ years – and Penal Law § 70.06(2), which requires that "when the court has found … that a person is a second felony offender[,] the court must impose an indeterminate sentence of imprisonment." The determinate sentences imposed would, however, be proper if the court sentenced defendant as a second felony drug offender (see Penal Law § 70.70[3][b][ii]). Inasmuch as the People concede, and the record reflects, that defendant is, in fact, a second felony drug offender, and the sentence is otherwise proper, the uniform sentence and commitment form must be amended to correctly reflect defendant’s status as such (see People v. Graham, 214 A.D.3d 1256, 1258, 184 N.Y.S.3d 635 [3d Dept. 2023], lv denied 40 N.Y.3d 934, 194 N.Y.S.3d 760, 215 N.E.3d 1201 [2023]; People v. Carrington, 194 A.D.3d 1253, 1255, 147 N.Y.S.3d 268 [3d Dept. 2021]).
The record does not contain a certificate of conviction, which may contain the same error. County Court should determine whether the certificate is erroneous and amend it if necessary.
Egan Jr., J.P., Lynch, Reynolds Fitzgerald and Powers, JJ., concur.
ORDERED that the judgments are affirmed, and matter remitted for entry of an amended uniform sentence and commitment form.