Opinion
12-08-2016
The PEOPLE of the State of New York, Respondent, v. Isiah GILBERT, also known as Pretty, Appellant.
G. Scott Walling, Schenectady, for appellant. P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
G. Scott Walling, Schenectady, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Before: EGAN JR., J.P., ROSE, CLARK, MULVEY and AARONS, JJ.
ROSE, J.Appeal from a judgment of the Supreme Court (McDonough, J.), rendered March 27, 2015 in Albany County, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree and waived his right to appeal. The plea agreement included a commitment from Supreme Court that it would not impose a sentence of more than five years in prison and three years of postrelease supervision. However, when defendant failed to appear at sentencing and violated other conditions of the plea agreement, the court imposed an enhanced sentence of 6 ½ years in prison followed by three years of postrelease supervision. Defendant appeals.
Defendant first contends that his plea was not knowingly, voluntarily and intelligently entered because, at the time he accepted the plea bargain, he was unaware that Supreme Court would require him to waive his right to appeal. Defendant's contention is misplaced, however, as it does not impact the voluntariness of his plea but, instead, implicates only the validity of the appeal waiver itself. In this regard, the record reflects that, "[a]lthough the appeal waiver was not mentioned when the terms of the plea agreement were initially placed on the record," defendant was informed during the plea colloquy, and prior to pleading guilty, that a waiver of the right to appeal was part of the plea bargain (People v. Johnson, 106 A.D.3d 1331, 1332, 965 N.Y.S.2d 665 [2013], lvs. denied 21 N.Y.3d 1016, 1019, 971 N.Y.S.2d 499, 502, 994 N.E.2d 395, 398 [2013] ). The record further reflects that Supreme Court sufficiently explained the distinct rights forfeited by the waiver, defendant conferred with his counsel concerning the waiver, orally waived his right to appeal and executed a written waiver in open court (see People v. Samuel, 143 A.D.3d 1012, 1012, 38 N.Y.S.3d 445 [2016] ; compare People v. Middleton, 72 A.D.3d 1336, 1337, 898 N.Y.S.2d 729 [2010] ). In light of this, we find that defendant's appeal waiver is valid.
Defendant next contends that Supreme Court erred in imposing an enhanced sentence because the record does not reflect that he was advised of the conditions that, if violated, would subject him to an enhanced sentence. While defendant's valid appeal waiver does not preclude defendant from raising this contention, it is, nonetheless, unpreserved for our review (see People v. Rushlow, 137 A.D.3d 1482, 1483, 28 N.Y.S.3d 476 [2016] ; People v. Tole, 119 A.D.3d 982, 984, 989 N.Y.S.2d 185 [2014] ). Were we to consider it in any event, a review of the plea minutes establishes that Supreme Court adequately set forth the conditions that would result in both the plea agreement being "broken" and an enhanced sentence. During sentencing, defendant expressly acknowledged that, at the time of the plea, he was aware of three conditions—specifically, that he would cooperate with law enforcement by assisting them with investigations, cooperate with the Probation Department and appear at the originally scheduled sentencing date—and that he did, in fact, violate those conditions. Accordingly, were this issue before us, we would find it to be without merit (see People v. Thomas, 81 A.D.3d 997, 997, 916 N.Y.S.2d 648 [2011], lv. denied 16 N.Y.3d 900, 926 N.Y.S.2d 35, 949 N.E.2d 983 [2011] ; compare People v. Tole, 119 A.D.3d at 984, 989 N.Y.S.2d 185 ). "Finally, defendant's challenge to his enhanced sentence as harsh and excessive is precluded by his valid waiver of the right to appeal inasmuch as [Supreme] Court advised him of the consequences of violating the conditions of his plea" (People v. Lester, 141 A.D.3d 951, 954, 36 N.Y.S.3d 288 [2016] [internal quotation marks and citations omitted] ).
We reject defendant's contention that this argument also implicates the voluntariness of his plea.
--------
Defendant's remaining contentions are unpreserved for our review.
ORDERED that the judgment is affirmed.
EGAN JR., J.P., CLARK, MULVEY and AARONS, JJ., concur.