Opinion
03-17-2016
The PEOPLE of the State of New York, Respondent, v. Fernando D. JOHNSON, Appellant.
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant. Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Opinion
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered March 17, 2014, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
Defendant pleaded guilty to criminal possession of a controlled substance in the third degree pursuant to a plea agreement that included a waiver of appeal. The plea satisfied a two-count indictment, which stemmed from the execution of a search warrant and discovery of cocaine in defendant's possession. Defendant admitted his predicate felony conviction and County Court, as agreed, imposed a prison sentence of six years with three years of postrelease supervision. This appeal ensued.
As a threshold matter, we find that defendant's waiver of appeal was knowing, voluntary and intelligent (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]; see also People v. Sanders 25 N.Y.3d 337, 340–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015]; People v. Jackson, 129 A.D.3d 1342, 1342, 10 N.Y.S.3d 368 [2015] ). The record reflects that County Court adequately explained the right to appeal and that it was separate and distinct from the other rights automatically forfeited by defendant's guilty plea, as well as the rights that were not forfeited by the appeal waiver (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Rubio, 133 A.D.3d 1041, 1042, 20 N.Y.S.3d 666 [2015] ). Defendant also executed a detailed written waiver in open court that described the scope of the rights being waived and acknowledged that he had sufficient time to discuss it with counsel, after County Court confirmed that he understood the written waiver of appeal and was freely and voluntarily signing it (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006]; see also People v. Bradshaw, 18 N.Y.3d 257, 266–267, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011]; People v. Clapper, 133 A.D.3d 1037, 1038, 20 N.Y.S.3d 452 [2015] ). Given defendant's valid appeal waiver, his challenge to the sentence as harsh and excessive is foreclosed (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Clapper, 133 A.D.3d at 1038, 20 N.Y.S.3d 452).
Defendant further contends that County Court erred when it refused his request, made for the first time at sentencing, for a sentence of parole supervision that included drug treatment, pursuant to Penal Law § 70.70(3)(d) (see CPL 410.91). However, defendant received the sentence promised by the plea agreement—a six-year prison sentence with postrelease supervision—and that agreement did not include any promise by County Court to consider or recommend drug treatment as an alternative, discretionary sentence (see People v. Brady, 122 A.D.3d 1009, 1010, 995 N.Y.S.2d 418 [2014], lv. denied 25 N.Y.3d 1160, 15 N.Y.S.3d 292, 36 N.E.3d 95 [2015]; People v. Patterson, 119 A.D.3d 1157, 1158, 990 N.Y.S.2d 319 [2014], lv. denied 24 N.Y.3d 1042, 1046, 998 N.Y.S.2d 316, 23 N.E.3d 159 [2014] ). In any event, County Court did not err in concluding that a drug treatment program would not be appropriate or warranted given defendant's criminal history.
ORDERED that the judgment is affirmed.