People v. Bailey

• Decision Date: 18 January 2018
• Docket Number: 108014
• Citation: 69 N.Y.S.3d 440,157 A.D.3d 1133
• Parties: The PEOPLE of the State of New York, Respondent, v. Wilbur C. BAILEY Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

157 A.D.3d 1133
69 N.Y.S.3d 440

The PEOPLE of the State of New York, Respondent,
v.
Wilbur C. BAILEY Jr., Appellant.

108014

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: December 14, 2017
Decided and Entered: January 18, 2018

69 N.Y.S.3d 441

Mark Diamond, Albany, for appellant.

Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeals (1) from a judgment of the County Court of Franklin County (Main Jr., J.), rendered April 13, 2015, which resentenced defendant upon his conviction of burglary in the third degree, and (2) from a judgment of said court, rendered September 16, 2015, which revoked defendant's probation and imposed a sentence of imprisonment.

In July 2013, defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with burglary in the third degree and criminal possession of a weapon in the fourth degree. Defendant thereafter pleaded guilty to burglary in the third degree in full satisfaction of the charged crimes and waived his right to appeal in exchange for a split sentence of six months in the local jail and five years of probation. Less than five months later, defendant was charged with violating the terms and conditions of his probation by, among other things, testing positive for opiates. Defendant subsequently admitted violating the terms and conditions of his probation and waived his right to appeal—with the understanding that he would be restored to probation pending successful completion of an inpatient treatment program. After achieving a successful discharge from treatment, defendant was resentenced/restored to probation in April 2015.

In August 2015, defendant again was charged with violating the terms and conditions of his probation—this time by testing positive for suboxone and failing to truthfully respond to the Probation Department's inquiries relative thereto. A hearing was scheduled for September 2015, at which time defendant agreed to admit to certain violations with the understanding that County Court would revoke his probation and resentence him to no more than an indeterminate prison term of 2 to 6 years. Defendant also was required to waive his right to appeal (except as to constitutional issues and any violation of the court's sentencing commitment). Following defendant's admissions, County Court revoked defendant's probation and resentenced him to a prison term of 2 to 6 years.¹ These appeals by defendant ensued.

69 N.Y.S.3d 442

Contrary to defendant's assertion, we find that his waiver of the right to appeal—as placed on the record during the course of the September 2015 violation of probation proceeding—was knowing, intelligent and voluntary. County...