Opinion
10-06-2016
The PEOPLE of the State of New York, Respondent, v. Leon SAMUEL, Appellant.
Keeley A. Maloney, Albany, for appellant. P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Keeley A. Maloney, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, DEVINE, CLARK and MULVEY, JJ.
CLARK, J.
Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered October 21, 2014, convicting defendant upon his plea of guilty of the crime of robbery in the third degree.
Defendant waived indictment and was charged in a superior court information with robbery in the third degree. He pleaded guilty to this crime in satisfaction of another pending charge and waived his right to appeal, both orally and in writing. In accordance with the terms of the plea agreement, defendant was sentenced, as a second felony offender, to 3 to 6 years in prison. He now appeals.
Initially, the record discloses that defendant validly waived his right to appeal, as County Court separately addressed and distinguished this right from the other rights that defendant was automatically forfeiting by pleading guilty, and defendant communicated his understanding thereof and agreed to waive his right to appeal (see People v. Cota, 136 A.D.3d 1116, 1116–1117, 24 N.Y.S.3d 537 [2016] ; People v. Butler, 134 A.D.3d 1349, 1349–1350, 22 N.Y.S.3d 617 [2015], lvs. denied 27 N.Y.3d 962, 963, 36 N.Y.S.3d 624, 56 N.E.3d 904 [2016] ). In addition, defendant executed a written appeal waiver that both he and his counsel signed in open court and presented to County Court (see People v. Butler, 134 A.D.3d at 1349–1350, 22 N.Y.S.3d 617 ; People v. Rubio, 133 A.D.3d 1041, 1042, 20 N.Y.S.3d 666 [2015] ). Inasmuch as defendant knowingly, voluntarily and intelligently waived his right to appeal, he is precluded from challenging the severity of the sentence (see People v. Butler, 134 A.D.3d at 1350, 22 N.Y.S.3d 617 ; People v. Almeida, 127 A.D.3d 1499, 1500, 7 N.Y.S.3d 696 [2015], lv. denied 26 N.Y.3d 1006, 20 N.Y.S.3d 547, 42 N.E.3d 217 [2015] ). Defendant further argues that his counsel was ineffective in failing to bring certain mitigating circumstances to County Court's attention and to address the effect that his guilty plea may have upon his federal probation. As this claim pertains to sentencing and does not implicate the voluntariness of defendant's guilty plea, it is also foreclosed by defendant's valid appeal waiver (see People v. Livziey, 117 A.D.3d 1341, 1342, 986 N.Y.S.2d 686 [2014] ; People v. Coffey, 77 A.D.3d 1202, 1204, 910 N.Y.S.2d 206 [2010], lv. denied 18 N.Y.3d 882, 939 N.Y.S.2d 752, 963 N.E.2d 129 [2012] ).
ORDERED that the judgment is affirmed.
McCARTHY, J.P., GARRY, DEVINE and MULVEY, JJ., concur.