Opinion
108674
11-29-2018
The PEOPLE of the State of New York, Respondent, v. Michael WALKER, Also Known as Sam, SK, Mike, Shaq, Appellant.
Martin J. McGuinness, Saratoga Springs, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Martin J. McGuinness, Saratoga Springs, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Garry, P.J., Lynch, Devine, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Aarons, J.
Defendant was charged in an indictment with multiple crimes arising from his sales of heroin and false grand jury testimony. Following discovery and the commencement of a jury trial, defendant decided to accept the People's plea offer. In satisfaction of the indictment, he pleaded guilty to criminal sale of a controlled substance in the third degree and perjury in the first degree and waived his right to appeal, both orally and in writing. Supreme Court sentenced defendant as a second felony offender in accordance with the terms of the plea agreement to prison terms of six years, followed by two years of postrelease supervision, on the drug conviction and to 2 to 4 years on the perjury conviction, which sentences were to run concurrently. Defendant appeals. We affirm.
The first four counts of the indictment were dismissed before trial, leaving six counts remaining.
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We reject defendant's assertion that his appeal waiver was invalid. The record discloses that Supreme Court advised defendant of the trial-related rights that he would be forfeiting as a consequence of pleading guilty. After doing so, the court further advised defendant that he had the right to have an appellate court review his conviction and sentence, but that an appeal waiver was a condition of the plea agreement. Defendant orally confirmed that he understood what he was giving up by waiving his right to appeal, and he signed a written waiver of appeal in open court after reading and reviewing it with his counsel. Even though the court did not specifically utilize the words "separate and distinct," "the court is not obliged to engage in any particular litany or catechism in satisfying itself that a defendant has entered a knowing, intelligent and voluntary appeal waiver" ( People v. Griffin, 134 A.D.3d 1228, 1228–1229, 20 N.Y.S.3d 738 [2015] [internal quotations marks and citation omitted], lv denied 27 N.Y.3d 1132, 39 N.Y.S.3d 114, 61 N.E.3d 513 [2016] ; see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Franklin, 164 A.D.3d 1547, 1548, 83 N.Y.S.3d 742 [2018] ). In view of the oral colloquy and the written waiver, we are satisfied that the court sufficiently apprised defendant of his right to appeal without lumping it in with those trial-related rights being forfeited by his plea (see People v. Hartfield, 151 A.D.3d 1116, 1117, 57 N.Y.S.3d 217 [2017], lv denied 29 N.Y.3d 1127, 64 N.Y.S.3d 677, 86 N.E.3d 569 [2017] ; People v. Pixley, 150 A.D.3d 1555, 1557, 56 N.Y.S.3d 578 [2017], lv denied 30 N.Y.3d 952, 67 N.Y.S.3d 136, 89 N.E.3d 526 [2017] ). As such, we find that defendant's appeal waiver was valid (see People v. King, 163 A.D.3d 1352, 1352, 77 N.Y.S.3d 905 [2018] ; People v. Wood, 161 A.D.3d 1447, 1448, 77 N.Y.S.3d 763 [2018] ; People v. Garrow, 147 A.D.3d 1160, 1161, 47 N.Y.S.3d 744 [2017] ). That said, defendant is precluded from arguing that the agreed-upon sentence was harsh and excessive (see People v. Nieves, 163 A.D.3d 1359, 1359, 77 N.Y.S.3d 908 [2018], lv denied 32 N.Y.3d 1006, 86 N.Y.S.3d 765, 111 N.E.3d 1121 [2018] ; People v. Venable, 161 A.D.3d 1315, 1315, 73 N.Y.S.3d 459 [2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018] ).
Finally, although defendant's claim of ineffective assistance survives the appeal waiver to the extent that it impacts the voluntariness of his plea, it is unpreserved for our review in the absence of a postallocution motion (see People v. Norton, 164 A.D.3d 1502, 1503, 82 N.Y.S.3d 665 [2018] ; People v. Edwards, 160 A.D.3d 1280, 1281, 75 N.Y.S.3d 663 [2018], lv denied 31 N.Y.3d 1147, 83 N.Y.S.3d 428, 108 N.E.3d 502 [2018] ). Nor does the narrow exception to the preservation requirement apply in this case (see People v. Velez, 158 A.D.3d 952, 953, 68 N.Y.S.3d 776 [2018] ; People v. Smith, 155 A.D.3d 1244, 1245, 65 N.Y.S.3d 580 [2017] ).
ORDERED that the judgment is affirmed.
Garry, P.J., Lynch, Devine and Pritzker, JJ., concur.