People v. Boyette

• Decision Date: 01 August 2019
• Docket Number: 109816
• Citation: 103 N.Y.S.3d 870 (Mem),175 A.D.3d 751
• Parties: The PEOPLE of the State of New York, Respondent, v. Jacqueline BOYETTE, Appellant.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 751

103 N.Y.S.3d 870 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Jacqueline BOYETTE, Appellant.

109816

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

Calendar Date: June 21, 2019

Decided and Entered: August 1, 2019

Carolyn B. George, Albany, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Kehm of counsel), for respondent.

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

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Clinton County (Lawliss, J.), rendered August 22, 2017, convicting defendant upon her plea of guilty of the crime of criminal sale of a controlled substance in the third degree (two counts).

In satisfaction of a five-count indictment, defendant pleaded guilty to two counts of criminal sale of a controlled substance in the third degree and waived her right to appeal, both orally and in writing. County Court sentenced defendant, a second felony offender, to the agreed-upon concurrent prison terms of five years, followed by three years of postrelease supervision. Defendant appeals.

We are unpersuaded by defendant's contention that the waiver of the right to appeal was invalid. After defendant pleaded guilty to the crimes, County Court explained that "the next part of the [plea] agreement" required that defendant waive her right to appeal, then provided a general explanation of the right to appeal, which defendant acknowledged she understood. Defendant proceeded to confer with counsel and execute a written appeal waiver, which specifically noted that the right to appeal is "separate [and] distinct" from those rights automatically forfeited by the guilty plea, and she confirmed to the court that she had read and understood the appeal waiver. Although County Court did not use the words "separate and distinct" in its colloquy, "a trial court need not engage in any particular litany or catechism in satisfying itself that a defendant has entered a knowing, intelligent and voluntary appeal waiver" ( People v. Bradshaw , 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] [internal quotation marks and citation omitted]; see People v. Sanders , 25 N.Y.3d 337, 341, 34 N.E.3d 344 [2015] ; People v. Douglas , 168 A.D.3d 1285, 1285, 91 N.Y.S.3d 814 [2019] ). We are satisfied that the language employed provided a sufficient basis for defendant to understand the separate and distinct nature of the right to appeal and did not impermissibly lump that right with those automatically forfeited by her guilty plea (see People v. Womack , 172 A.D.3d 1819, 1820, 101 N.Y.S.3d 771 [2019] ; People v. Douglas , 168 A.D.3d at 1286, 91 N.Y.S.3d 814 ; People v. Walker , 166 A.D.3d 1393, 1394, 86 N.Y.S.3d 920 [2018] ). As such, we find that defendant's combined oral and...