People v. Bayne, 109207

• Decision Date: 19 September 2019
• Docket Number: 109207,109208
• Citation: 107 N.Y.S.3d 192,175 A.D.3d 1722
• Parties: The PEOPLE of the State of New York, Respondent, v. Alexander BAYNE, Appellant.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 1722

107 N.Y.S.3d 192

The PEOPLE of the State of New York, Respondent,

v.Alexander BAYNE, Appellant.

109207

109208

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

Calendar Date: August 30, 2019

Decided and Entered: September 19, 2019

Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), for appellant.

Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark, Aarons and Rumsey, JJ.

Defendant was charged in an indictment with various drug-related crimes. While he was in jail pending the disposition of these charges, he was involved in an altercation with a correction officer and was charged in a superior court information with attempted assault in the second degree. In satisfaction of the indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and was required to waive his right to appeal. Under the terms of the plea agreement, defendant was permitted to choose whether to be sentenced to a determinate prison term of nine years followed by three years of postrelease supervision or to allow County Court to select an appropriate determinate prison term of between 7 and 10 years followed by three years of postrelease supervision. After defendant admitted that he was a second felony offender, County Court adjourned the proceedings for sentencing.

The proceedings subsequently resumed on both accusatory instruments, at which time defendant pleaded guilty to attempted assault in the second degree as charged in the superior court information. He was again required to waive his right to appeal. Under the terms of this plea agreement, defendant was to be sentenced as a second felony offender to 2 to 4 years in prison, to run concurrently with the sentence imposed upon his conviction of criminal sale of a controlled substance in the third degree. Defendant elected to have County Court select the appropriate sentence for his criminal sale conviction, and the court sentenced him to 8½ years in prison, followed by three years of postrelease supervision. It then sentenced him to a concurrent prison term of 2 to 4 years on the attempted assault conviction. Defendant appeals.

Defendant challenges the severity of the sentence and contends that he is not precluded from doing so because his appeal waivers were invalid. We disagree. The record demonstrates that, in connection with both of his guilty pleas, defendant "knowingly, voluntarily and intelligently waived his right to appeal – both orally and in writing – after he expressly acknowledged that h...