Opinion
2013-04-25
The PEOPLE of the State of New York, Respondent, v. Dale MARTIN II, Appellant.
Lisa A. Burgess, Indian Lake, for appellant. Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), for respondent.
Lisa A. Burgess, Indian Lake, for appellant. Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), for respondent.
Before: MERCURE, J.P., SPAIN, McCARTHY and EGAN JR., JJ.
SPAIN, J.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered December 19, 2011, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree.
As part of an agreement resolving charges arising out of numerous incidents, defendant pleaded guilty to attempted assaultin the second degree and waived his right to appeal. County Court, in turn, agreed to sentence defendant to a prison term of 1 1/3 to 4 years and to direct his enrollment in the shock incarceration program if he successfully continued drug treatment. Defendant thereafter tested positive for an unprescribed medication and was discharged from the treatment program. County Court nevertheless imposed the initially contemplated prison sentence, and defendant now appeals.
We note that County Court could recommend but not direct defendant's enrollment in shock incarceration because he did not plead guilty to a drug offense ( seePenal Law § 60.04[7] ); the court's order in that regard constituted a nonbinding recommendation ( seeCorrection Law § 71[6]; Matter of Ferreri v. Fischer, 69 A.D.3d 1014, 1014, 891 N.Y.S.2d 732 [2010],lv. denied14 N.Y.3d 707, 2010 WL 1707473 [2010] ). Defendant does not claim that this discrepancy rendered his guilty plea involuntary and, in any event, such an argument is not preserved for our review given that the record does not reveal that he moved to withdraw his guilty plea or to vacate the judgment of conviction ( see People v. Brown, 58 A.D.3d 540, 540, 871 N.Y.S.2d 133 [2009],lv. denied12 N.Y.3d 814, 881 N.Y.S.2d 22, 908 N.E.2d 930 [2009] ).
We affirm. Defendant stated during the plea colloquy that he understood his right to appeal and wished to waive it, executed a detailed written waiver, then reiterated at sentencing that he understood that the right to appeal was separate and distinct from the other rights he was giving up ( see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Accordingly, we conclude that he knowingly, intelligently and voluntarily waived his right to appeal ( see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011];People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Lopez, 97 A.D.3d 853, 853, 948 N.Y.S.2d 174 [2012],lv. denied19 N.Y.3d 1027, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012] ). Inasmuch as County Court adhered to its sentencing commitment, defendant's valid appeal waiver precludes his sole assertion that the sentence was harsh and excessive ( see People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Koumjian, 101 A.D.3d 1175, 1175, 954 N.Y.S.2d 710 [2012],lv. denied20 N.Y.3d 1100, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [Mar. 6, 2013];People v. Garrand, 100 A.D.3d 1156, 1157, 953 N.Y.S.2d 727 [2012],lv. denied20 N.Y.3d 1011, 960 N.Y.S.2d 354, 984 N.E.2d 329 [2013] ).
ORDERED that the judgment is affirmed.
MERCURE, J.P., McCARTHY and EGAN JR., JJ., concur.