Opinion
108703
06-28-2018
The PEOPLE of the State of New York, Respondent, v. Omar S. ROGERS, Appellant.
Dennis J. Lamb, Troy, for appellant. P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Dennis J. Lamb, Troy, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Devine, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Breslin, J.), rendered July 13, 2016 in Albany County, convicting defendant upon his plea of guilty of the crime of robbery in the second degree.
Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with robbery in the second degree. In satisfaction thereof, he pleaded guilty to robbery in the second degree and waived his right to appeal, both orally and in writing. In accordance with the plea agreement, defendant was sentenced to a prison term of five years, to be followed by five years of postrelease supervision. Defendant now appeals.
Defendant contends that his appeal waiver is invalid and therefore does not preclude his challenge to the severity of the sentence. We are unpersuaded and affirm. The record reflects that Supreme Court adequately explained to defendant that the waiver of the right to appeal was separate and distinct from the trial-related rights automatically forfeited by his guilty plea, and defendant further acknowledged that he understood the nature of the waiver (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Dobbs, 157 A.D.3d 1122, 1122, 68 N.Y.S.3d 781 [2018], lv denied 31 N.Y.3d 983, 77 N.Y.S.3d 661, 102 N.E.3d 438 [2018] ; People v. Rushlow, 137 A.D.3d 1482, 1483, 28 N.Y.S.3d 476 [2016] ). After discussing the waiver with counsel, defendant also signed a written waiver of appeal, in which defendant acknowledged that he was waiving his right to argue that the sentence is harsh or excessive (see People v. Peterkin, 156 A.D.3d 962, 963, 64 N.Y.S.3d 617 [2017] ; People v. Cuchelo, 155 A.D.3d 1189, 1190, 63 N.Y.S.3d 255 [2017] ). Accordingly, given the validity of the combined oral and written appeal waiver, defendant's contention that the agreed-upon sentence is harsh and excessive is precluded (see People v. Dutcher, 156 A.D.3d 1122, 1122, 67 N.Y.S.3d 354 [2017] ; People v. Brothers, 155 A.D.3d 1257, 1258, 63 N.Y.S.3d 907 [2017] ).
ORDERED that the judgment is affirmed.
Garry, P.J., Egan Jr., Devine, Mulvey and Rumsey, JJ., concur.