People v. Brasmeister
| Decision Date | 11 February 2016 |
| Citation | 136 A.D.3d 1122,25 N.Y.S.3d 694 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Anthony E. BRASMEISTER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
136 A.D.3d 1122
25 N.Y.S.3d 694
The PEOPLE of the State of New York, Respondent,
v.
Anthony E. BRASMEISTER, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
Feb. 11, 2016.
Mark Diamond, Albany, for appellant.
James E. Conboy, District Attorney, Fonda (Pamela A. Ladd of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, ROSE and DEVINE, JJ.
ROSE, J.
Appeal from a judgment of the County Court of Montgomery County (Hoye, J.), rendered July 11, 2013, convicting defendant upon his plea of guilty of the crime of murder in the second degree (two counts).
Defendant pleaded guilty to two counts of murder in the second degree and his plea included a waiver of the right to appeal. County Court thereafter sentenced him to two concurrent prison terms of 25 years to life. County Court further ordered defendant to pay restitution in the amount of $3,048.20. Defendant now appeals.
Contrary to defendant's contention, his responses during the plea allocution concerning his appeal waiver and his counseled, written waiver executed in open court, which adequately advised him that the right to appeal is separate and distinct from the other rights forfeited by a guilty plea, demonstrate that he knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v. Merrill, 123 A.D.3d 1339, 1339, 999 N.Y.S.2d 265 [2015], lv. denied 26 N.Y.3d 970, 18 N.Y.S.3d 606, 40 N.E.3d 584 [2015] ; People v. Frasier, 105 A.D.3d 1079, 1080, 962 N.Y.S.2d 787 [2013], lv. denied 22 N.Y.3d 1088, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014] ; People v. White, 96 A.D.3d 1299, 1299–1300, 946 N.Y.S.2d 717 [2012] ). The valid waiver precludes review of his challenge to the sentence as harsh and excessive (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Galietta, 75 A.D.3d 753, 754, 904 N.Y.S.2d 804 [2010] ; People v. Schwickrath, 23 A.D.3d 707, 708, 803 N.Y.S.2d 307 [2005] ).
As to defendant's challenge to the imposition of restitution, this issue survives his appeal waiver (see People v. Nugent, 31 A.D.3d 976, 978, 818 N.Y.S.2d 362 [2006], lv. denied 8 N.Y.3d 925, 834 N.Y.S.2d 516, 866...
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