People v. Campbell

• Decision Date: 16 November 2017
• Parties: The PEOPLE of the State of New York, Respondent, v. Everett CAMPBELL, Appellant.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1250

65 N.Y.S.3d 247

The PEOPLE of the State of New York, Respondent,

v.Everett CAMPBELL, Appellant.

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

Nov. 16, 2017.

Barrett D. Mack, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), for respondent.

Before: EGAN JR., J.P., LYNCH, ROSE, AARONS and PRITZKER, JJ.

EGAN JR., J.P.

In July 2014, defendant struck his girlfriend using a metal clamp and then intentionally damaged their residence by starting a fire there while his girlfriend and her son were inside that residence. Defendant was subsequently charged in an indictment with attempted murder in the second degree, arson in the second degree, assault in the first degree and endangering the welfare of a child. In April 2015, pursuant to a plea agreement requiring defendant to execute a waiver of appeal, defendant pleaded guilty to attempted arson in the second degree and attempted assault in the first degree. Thereafter, defendant was sentenced to concurrent prison terms of nine years, to be followed by three years of postrelease supervision, and an order of protection was issued by Supreme Court against defendant in favor of the victim. Defendant now appeals.

We affirm. Initially, contrary to defendant's contention, the record of the plea allocution reflects that an appeal waiver was recited up front as a condition of the plea agreement and that defendant's combined oral and written waiver of appeal was knowing, voluntary and intelligent (see People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Howe, 150 A.D.3d 1321, 1322, 54 N.Y.S.3d 190 [2017] ). Further, defendant signed a written waiver of appeal in open court that specifically waived any right to challenge the sentence imposed. The written waiver, like the oral colloquy, also reflected that defendant had a sufficient opportunity to discuss the waiver with counsel. Given defendant's valid appeal waiver, he is foreclosed from challenging the sentence as harsh and excessive (see People v. Pacherille, 25 N.Y.3d 1021, 1023–1024, 10 N.Y.S.3d 178, 32 N.E.3d 393 [2015] ; People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Garry, 133 A.D.3d 1039, 1040, 19 N.Y.S.3d 192 [2015], lv. dismissed 27 N.Y.3d 1046, 33 N.Y.S.3d 870, 53 N.E.3d 748 [2016] ).

Defendant also contends that his guilty plea was not entered knowingly, intelligently and voluntarily because the order of protection that was issued at sentencing was not included as a term of the plea agreement, and his guilty plea should therefore be vacated. While this claim survives defendant's waiver of appeal (see People v. Hansen, 95 N.Y.2d 227, 231 n. 2, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989] ), his challenge to the voluntariness of his plea is not preserved for our review due to his failure to make an appropriate postallocution motion or to object at the time of sentencing despite having ample opportunity to do so (see People v. Murray, 15 N.Y.3d 725, 727, 906 N.Y.S.2d 521, 932 N.E.2d 877 [2010] ; People v. Gardner, 129 A.D.3d 1386, 1387, 12 N.Y.S.3d 353 [2015] ; People v. McQuality, 112 A.D.3d 983, 983, 975 N.Y.S.2d 918 [2013] ; People v. Shaw, 78 A.D.3d 1376, 1377, 910 N.Y.S.2d 694 [2010] ). In any event, given that "[o]rders of protection are not punitive in nature and are not necessarily dependent on, or the result of, a plea agreement" ( People v. Curry, 123 A.D.3d 1381, 1384, 999 N.Y.S.2d 591 [2014], lv. denied 25 N.Y.3d 950, 7 N.Y.S.3d 279, 30 N.E.3d 170 [2015] ; see People v. Nieves, 2 N.Y.3d 310, 316, 778 N.Y.S.2d 751, 811 N.E.2d 13 [2004] ; People v. Hull, 52 A.D.3d 962, 963, 859 N.Y.S.2d 508 [2008] ; People v. Vere, 44 A.D.3d 690, 691, 843 N.Y.S.2d 378 [2007], lv. denied 9 N.Y.3d 1010, 850 N.Y.S.2d 398, 880 N.E.2d 884 [2007] ), County Court's issuance of an order of protection at sentencing does not render defendant's guilty plea invalid (see People v. Harnett, 72 A.D.3d...