Opinion
110023
03-16-2020
The PEOPLE of the State of New York, Respondent, v. David M. SCHROEDER, Appellant.
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant. John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), for respondent.
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), for respondent.
Before: Egan Jr., J.P., Mulvey, Devine, Aarons and Colangelo, JJ.
MEMORANDUM AND ORDER In full satisfaction of a two-count indictment, defendant agreed to plead guilty to one count of criminal sale of a controlled substance in the third degree with the understanding that he would be sentenced as a second felony offender to a prison term of five years followed by two years of postrelease supervision – to be served consecutively to the sentence he then was serving. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the plea agreement and was sentenced to the agreed-upon prison term. This appeal ensued.
Contrary to defendant's assertion, we find that his waiver of the right to appeal was knowing, intelligent and voluntary. County Court advised defendant that the waiver was a term and condition of the plea agreement and distinguished the right to appeal as separate and distinct from the trial-related rights that defendant automatically was forfeiting by pleading guilty (see People v. Couse , 178 A.D.3d 1207, 1207–1208, 115 N.Y.S.3d 786 [2019] ; People v. Gagnon , 153 A.D.3d 1451, 1452, 59 N.Y.S.3d 718 [2017] ). In return, "defendant acknowledged that he understood the nature of the waiver and that he was relinquishing his right to appeal [his] conviction and sentence" ( People v. Couse , 178 A.D.3d at 1208, 115 N.Y.S.3d 786 ). Additionally, defendant signed a detailed written waiver at the time of sentencing, wherein he confirmed that he had been apprised of his appellate rights and afforded sufficient time to confer with counsel. Although the better practice would have been for County Court to "confirm[ ] that defendant had discussed the waiver with counsel and had read the written waiver before signing it, the relevant facts and circumstances – including defendant's prior experience with the criminal justice system, the oral colloquy and the detailed written waiver – demonstrate that defendant knowingly, intelligently and voluntarily waived his right to appeal his conviction and sentence" ( People v. Lavalley , 150 A.D.3d 1339, 1340, 51 N.Y.S.3d 439 [2017] ; see People v. Gagnon , 153 A.D.3d at 1452, 59 N.Y.S.3d 718 ). In light of the valid appeal waiver, defendant's claim that the agreed-upon sentence imposed is harsh and excessive is precluded (see People v. Couse , 178 A.D.3d at 1208, 115 N.Y.S.3d 786 ; People v. Moore , 169 A.D.3d 1110, 1112, 93 N.Y.S.3d 464 [2019], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 233, 124 N.E.3d 722 [2019] ).
Egan Jr., J.P., Mulvey, Devine, Aarons and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.