Opinion
107795
05-24-2018
The PEOPLE of the State of New York, Respondent, v. Ronald WOOD, Appellant.
Donna Maria Lasher, Youngsville, for appellant. D. Holley Carnright, District Attorney, Kingston (Carly Wolfrom of counsel), for respondent.
Donna Maria Lasher, Youngsville, for appellant.
D. Holley Carnright, District Attorney, Kingston (Carly Wolfrom of counsel), for respondent.
Before: Garry, P.J., Lynch, Clark, Aarons and Rumsey, JJ.
MEMORANDUM AND ORDER
Clark, J.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered June 3, 2015, (1) convicting defendant upon his plea of guilty of the crime of aggravated criminal contempt, and (2) which revoked defendant's probation and imposed a sentence of imprisonment.
In October 2014, defendant waived indictment, agreed to be prosecuted by a superior court information charging him with criminal contempt in the first degree, waived his right to appeal and pleaded guilty to that charge, admitting that he punched the victim in the face in violation of an order of protection. In exchange, County Court imposed a split sentence of six months in jail and five years of probation and issued a no-contact order of protection in favor of the victim. Two months later, defendant was charged by indictment with aggravated criminal contempt (two counts) and sexual abuse in the third degree (two counts) related to the same victim. As a result, defendant was also charged with violating the conditions of his probation. Under the terms of a plea agreement resolving all charges in the indictment and the probation violation petition, defendant pleaded guilty to aggravated criminal contempt under count one of the indictment, waived his right to appeal and admitted that he violated certain enumerated conditions of his probation. At sentencing, County Court determined that defendant had violated the conditions of the plea agreement by failing to truthfully answer questions during his probation interview, which defendant conceded, thereby waiving a hearing on the matter. The court thereafter sentenced defendant on the violation of probation to an enhanced sentence of 1? to 4 years in prison, to be served consecutively to the agreed-upon sentence of 3½ to 7 years on the indictment, as an admitted second felony offender. A no-contact order of protection was issued in favor of the victim. Defendant appeals. Contrary to defendant's contentions, the record reflects that his combined oral and written waiver of appeal entered in connection with his guilty plea to the indictment and admission to the violation of probation is valid. County Court distinguished the waiver of appeal from the trial-related rights automatically extinguished by the guilty plea, ensured that defendant understood the right to appeal, and ascertained that he had discussed the appeal waiver with counsel and understood it prior to signing a written waiver. Under these circumstances, we find that defendant's appeal waiver was knowing, voluntary and intelligent (see People v. Sanders, 25 N.Y.3d 337, 339–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Smith, 157 A.D.3d 1059, 1059–1060, 69 N.Y.S.3d 190 [2018], lv denied 31 N.Y.3d 987, 77 N.Y.S.3d 665, 102 N.E.3d 442 [2018] ). Given the valid appeal waiver, defendant's challenge to the sufficiency of the plea allocution related to the indictment is foreclosed (see People v. Welden, 156 A.D.3d 1241, 1241, 65 N.Y.S.3d 814 [2017] ; People v. Love, 137 A.D.3d 1486, 1487, 28 N.Y.S.3d 479 [2016] ).
The plea agreement had contemplated a sentence of 1 to 3 years in prison on the probation violation, to be served consecutively to a prison term of 3½ to 7 years on the aggravated criminal contempt conviction.
To the extent that defendant attempts to raise arguments with respect to the 2014 judgment of conviction, he did not file a notice of appeal therefrom and any attempt to do so in the notice of appeal with respect to the violation of probation is untimely (see CPL 460.10[1][a] ; People v. Johnston, 140 A.D.3d 1528, 1529, 34 N.Y.S.3d 700 [2016], lv denied 28 N.Y.3d 1028, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] ).
--------
Defendant's general contention that his guilty plea was not knowing, voluntary and intelligent survives his valid appeal waiver, but was not preserved by an appropriate postallocution motion (see CPL 220.60[3] ; People v. Sumter, 157 A.D.3d 1125, 1126, 70 N.Y.S.3d 253 [2018] ). Moreover, the narrow exception to the preservation rule is inapplicable, as defendant did not make any statements that were inconsistent with his guilt or cast doubt on the voluntariness of his plea (see People v. Williams, 27 N.Y.3d 212, 220, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ).
ORDERED that the judgment is affirmed.
Garry, P.J., Lynch, Aarons and Rumsey, JJ., concur.