Opinion
2014-06-13
The PEOPLE of the State of New York, Respondent, v. Jacob E. WARE, III, Defendant–Appellant.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of Counsel), for Respondent.
David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of Counsel), for Defendant–Appellant. Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the second degree (Penal Law § 160.10[1] ). In a separate indictment, defendant was charged with burglary in the second degree (Penal Law § 140.25[2] ) and grand larceny in the fourth degree (§ 155.30) in connection with an unrelated incident. Prior to sentencing on the robbery conviction, defendant pleaded guilty to burglary in the second degree in satisfaction of the separate indictment on the “very specific condition” that he waive his right to appeal that conviction and, further, that he waive his right to appeal his robbery conviction. In exchange, the People agreed not to seek a persistent felony offender adjudication in either case, and County Court promised to sentence defendant to concurrent terms of incarceration.
Contrary to the contention of defendant, we conclude that the record establishes that he knowingly, intelligently and voluntarily waived his right to appeal the robbery conviction ( see People v. Colucci, 94 A.D.3d 1418, 1419, 942 N.Y.S.2d 394,lv. denied19 N.Y.3d 959, 950 N.Y.S.2d 111, 973 N.E.2d 209;see generally People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Defendant's contention that his waiver of the right to appeal was coerced is belied by the record ( see People v. Hayes, 71 A.D.3d 1187, 1188, 896 N.Y.S.2d 225,lv. denied15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821,reconsideration denied15 N.Y.3d 921, 913 N.Y.S.2d 647, 939 N.E.2d 813). Further, the fact that defendant waived his right to appeal in exchange for favorable sentencing terms and the People's withdrawal of their persistent felony offender application does not render the waiver invalid ( see People v. Thacker, 47 A.D.3d 423, 423, 848 N.Y.S.2d 655,lv. denied10 N.Y.3d 817, 857 N.Y.S.2d 50, 886 N.E.2d 815;People v. Greene, 7 A.D.3d 923, 923, 776 N.Y.S.2d 527,lv. denied3 N.Y.3d 659, 782 N.Y.S.2d 701, 816 N.E.2d 574;see generally People v. Gast, 114 A.D.3d 1270, 1270–1271, 980 N.Y.S.2d 221).
Defendant's contentions that, during the robbery trial, the court erred in refusing to admit his codefendant's out-of-court statement as a declaration against penal interest, and that the court should have provided a missing witness charge, are encompassed by his valid waiver of the right to appeal ( see generally Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Muniz, 91 N.Y.2d 570, 574, 673 N.Y.S.2d 358, 696 N.E.2d 182;People v. Mercer, 81 A.D.3d 1159, 1160, 917 N.Y.S.2d 397,lv. denied19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921).
Finally, although defendant's waiver of the right to appeal does not encompass his challenge to the severity of the sentence ( see People v. Maracle, 19 N.Y.3d 925, 927, 950 N.Y.S.2d 498, 973 N.E.2d 1272;People v. Milon, 114 A.D.3d 1130, 1131, 979 N.Y.S.2d 883;People v. Peterson, 111 A.D.3d 1412, 1412, 974 N.Y.S.2d 864), we nevertheless conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.