Opinion
106925.
02-11-2016
The PEOPLE of the State of New York, Respondent, v. Alain FORGET, Appellant.
Cynthia Feathers, Glens Falls, for appellant. Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.
Cynthia Feathers, Glens Falls, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.
Opinion
PETERS, P.J.
Appeals (1) from a judgment of the County Court of Franklin County (Main Jr., J.), rendered June 2, 2014, convicting defendant upon his plea of guilty of the crime of criminal sale of a firearm in the third degree, and (2) from a judgment of said court, rendered January 12, 2015, which resentenced defendant.
In satisfaction of a six-count indictment, defendant pleaded guilty to criminal sale of a firearm in the third degree. Pursuant to the plea agreement, County Court committed to imposing a prison sentence not to exceed seven years, to be served concurrently with the sentence imposed on a federal conviction for conspiracy to possess and distribute marihuana. Consistent with that agreement, which included a waiver of appeal, the court sentenced defendant to a prison term of seven years with five years of postrelease supervision. The period of postrelease supervision was later reduced, upon resentencing, to three years pursuant to Penal Law § 70.45(2)(e). Defendant now appeals from the judgments entered upon sentencing and resentencing.
Defendant's federal prison sentence of 70 months was later reduced by the United States District Court for the Northern District of New York to 60 months.
Contrary to defendant's contention, the record of the plea allocution reflects that an appeal waiver was recited up front as a condition of the plea agreement and that defendant's waiver of appeal was knowing, voluntary and intelligent (see People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 2015; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 2006 ). County Court explained that defendant would ordinarily retain the right to appeal any decision of the trial court, but that the plea agreement offered required that he give up that right with certain exceptions, ascertained that defendant had discussed it with counsel and understood its meaning and did not impermissibly lump this right with the other appellate rights automatically forfeited by a guilty plea (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Fishel, 128 A.D.3d 15, 17, 6 N.Y.S.3d 312 2015 ). As defendant's understanding and acceptance of the terms of the plea agreement, including the appeal waiver, are “apparent on the face of the record,” the waiver of appeal is enforceable ( People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 1992; see People v. Sanders, 25 N.Y.3d at 340–341, 12 N.Y.S.3d 593, 34 N.E.3d 344). Given defendant's valid appeal waiver, he is foreclosed from challenging the sentence as harsh and excessive (see People v. Pacherille, 25 N.Y.3d 1021, 1023–1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 2015; People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Garry, 133 A.D.3d 1039, 1040, 19 N.Y.S.3d 192 2015 ).
ORDERED that the judgments are affirmed.
GARRY, EGAN JR., ROSE and CLARK, JJ., concur.