Opinion
2015-02-11
The PEOPLE of the State of New York, Respondent, v. Richard VELAZQUEZ, Appellant.
John P.M. Wappett, Public Defender, Lake George (Marcy I. Flores of counsel), for appellant. Kathleen B. Hogan, District Attorney, Lake George (Jason M. Carusone of counsel), for respondent.
John P.M. Wappett, Public Defender, Lake George (Marcy I. Flores of counsel), for appellant. Kathleen B. Hogan, District Attorney, Lake George (Jason M. Carusone of counsel), for respondent.
Before: McCARTHY, J.P., ROSE, EGAN JR. and DEVINE, JJ.
EGAN JR., J.
Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered April 25, 2012, convicting defendant upon his plea of guilty of the crimes of assault in the second degree and strangulation in the second degree.
In satisfaction of a seven-count indictment, defendant entered an Alford plea to one count of assault in the second degree and one count of strangulation in the second degree and waived his right to appeal. In accordance with the plea agreement, defendant was sentenced to an aggregate prison term of 10 years followed by five years of postrelease supervision. Defendant now appeals.
We affirm. Initially, we note that defendant's waiver of the right to appeal was valid inasmuch as County Court “distinguished the right to appeal from the rights automatically forfeited upon a guilty plea and explained the consequences of defendant's plea,” and defendant then reviewed and executed a detailed written waiver with counsel in open court (People v. Chavis, 117 A.D.3d 1193, 1194, 987 N.Y.S.2d 111 [2014]; see People v. Koumjian, 101 A.D.3d 1175, 1175, 954 N.Y.S.2d 710 [2012], lv. denied20 N.Y.3d 1100, 965 N.Y.S.2d 797, 988 N.E.2d 535 [2013] ). That waiver precludes defendant's challenge to the severity of his sentence ( see People v. Chavis, 117 A.D.3d at 1195, 987 N.Y.S.2d 111; People v. Koumjian, 101 A.D.3d at 1175, 954 N.Y.S.2d 710). While not precluded by the waiver, defendant's assertion that his plea was involuntary because medication administered at the local jail clouded his judgment is unpreserved for our review in the absence of a proper postallocution motion, and the narrow exception to the preservation requirement is inapplicable here ( see People v. Chavis, 117 A.D.3d at 1194, 987 N.Y.S.2d 111; compare People v. Hennessey, 111 A.D.3d 1166, 1168–1169, 975 N.Y.S.2d 502 [2013] ).
Although defendant's remaining challenges—that the imposition of consecutive sentences was illegal and that the uniform sentence and commitment form must be amended—also survive his waiver ( see People v. Koumjian, 101 A.D.3d at 1175, 954 N.Y.S.2d 710; People v. Vasavada, 93 A.D.3d 893, 894, 938 N.Y.S.2d 924 [2012], lv. denied19 N.Y.3d 978, 950 N.Y.S.2d 360, 973 N.E.2d 770 [2012] ), we reject them as meritless. “[E]ven if the statutory elements of multiple offenses overlap, sentences may be imposed to run consecutively when multiple offenses are committed through separate and distinct acts, though they are part of a single transaction” (People v. Ramirez, 89 N.Y.2d 444, 451, 654 N.Y.S.2d 998, 677 N.E.2d 722 [1996]; see People v. Moon, 119 A.D.3d 1293, 1294–1295, 990 N.Y.S.2d 98 [2014], lv. denied24 N.Y.3d 1004, 997 N.Y.S.2d 122, 21 N.E.3d 574 [2014] ). The facts adduced during the plea colloquy revealed that the acts underlying the assault and strangulation charges were separate and distinct; thus, consecutive sentences were proper ( see People v. Moon, 119 A.D.3d at 1295, 990 N.Y.S.2d 98; People v. Koumjian, 101 A.D.3d at 1175, 954 N.Y.S.2d 710). Finally, inasmuch as there was substantial compliance with the requirements of CPL 400.21 ( see People v. Morse, 111 A.D.3d 1161, 1161, 975 N.Y.S.2d 496 [2013], lv. denied23 N.Y.3d 1040, 993 N.Y.S.2d 254, 17 N.E.3d 509 [2014] ), and defendant does not challenge the terms of his sentence—which properly reflected his status as a second felony offender—the uniform sentence and commitment form need not be amended as a result of County Court's failure to expressly reiterate that defendant was a second felony offender at sentencing ( see generally People v. Whalen, 101 A.D.3d 1167, 1170, 956 N.Y.S.2d 598 [2012], lv. denied20 N.Y.3d 1105, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013]; compare People v. Feliciano, 108 A.D.3d 880, 881 n. 1, 969 N.Y.S.2d 221 [2013], lv. denied22 N.Y.3d 1040, 981 N.Y.S.2d 374, 4 N.E.3d 386 [2013] ).
ORDERED that the judgment is affirmed. McCARTHY, J.P., ROSE and DEVINE, JJ., concur.