People v. Boykin

• Decision Date: 18 December 2000
• Citation: 721 N.Y.S.2d 299
• Parties: (A.D. 3 Dept. 2001) THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DIWANI BOYKIN, Appellant. 77001 Calendar Date:
• Court: New York Supreme Court — Appellate Division

Page 299

721 N.Y.S.2d 299 (A.D. 3 Dept. 2001)

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DIWANI BOYKIN, Appellant.

77001

SUPREME COURT, APPELLATE DIVISION, THIRD JUDICIAL DEPARTMENT

Calendar Date: December 18, 2000

Decided and Entered: March 8, 2001

Eliza S. Mulhern, Cortland, for appellant.

William J. Gibbons, District Attorney (Paul W. Elkan of counsel), Cooperstown, for respondent.

Before: Mercure, J.P., Crew III, Mugglin, Rose and Lahtinen, JJ.

Mercure, J.P.

Appeal from a judgment of the County Court of Otsego County (Coccoma, J.), rendered May 24, 1996, upon a verdict convicting defendant of two counts of the crime of criminal sale of a controlled substance in the third degree.

Upon the trial of an indictment charging two counts of criminal sale of a controlled substance in the third degree, defendant was found guilty of both counts. At a combined sentencing and plea proceeding, defendant was sentenced to two consecutive indeterminate prison terms of 3 to 9 years on the drug sale charges and, in satisfaction of two related indictments and other pending charges, he entered a plea of guilty of criminal possession of a weapon in the third degree. As part of the plea bargain, defendant waived the right to appeal not only the weapon possession conviction based on the plea but also the drug sale conviction based on the verdict at trial. He filed a notice of appeal from the judgment convicting him of the drug sale charges and was thereafter sentenced on the weapon possession charge in accordance with the plea bargain. Assigned counsel now moves to be relieved of the assignment on the ground that there are no nonfrivolous issues.

In the absence of any argument or anything in the record to suggest that defendant's waiver of the right to appeal was not knowingly and voluntarily made or that it was designed to conceal error or prosecutorial overreaching, the waiver is enforceable with regard to both judgments of conviction (see, People v Govan, 199 A.D.2d 815, lv denied 83 N.Y.2d 853), including the one from which defendant appeals. Accordingly, based upon our review of the record, we agree with assigned counsel that there are no nonfrivolous issues. In so concluding, we have considered the issues raised by defendant in his pro se brief and find that, to the extent they survived defendant's waiver of the right to appeal (see, People v Seaberg 74 N.Y.2d 1, 9), they have no arguable merit. The judgment is, therefore, affirmed and assigned c...