People v. Drake

• Decision Date: 09 January 2020
• Docket Number: 109994
• Citation: 179 A.D.3d 1221,117 N.Y.S.3d 353
• Parties: The PEOPLE of the State of New York, Respondent, v. Stephen DRAKE, Appellant.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 1221
117 N.Y.S.3d 353

The PEOPLE of the State of New York, Respondent,
v.
Stephen DRAKE, Appellant.

109994

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

Calendar Date: December 18, 2019
Decided and Entered: January 9, 2020

117 N.Y.S.3d 354

Erin C. Morigerato, Albany, for appellant.

Michael J. Kavanagh, Acting District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

179 A.D.3d 1221

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered October 3, 2017, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

Pursuant to a plea agreement, defendant pleaded guilty to burglary in the second degree in satisfaction of a two-count indictment and waived his right to appeal. County Court sentenced him to a prison term of six years, followed by five years of postrelease supervision, in accordance with the terms of the agreement and ordered restitution in the amount of $7,865. Defendant appeals.

117 N.Y.S.3d 355

We affirm. Defendant's challenge to the validity of his waiver of the right to appeal is unavailing. County Court thoroughly explained to defendant that his right to appeal was separate and distinct from the trial-related rights that he would be automatically forfeiting by pleading guilty, and defendant repeatedly confirmed that he understood the nature of the waiver (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Harrison, 176 A.D.3d 1262, 1263, 109 N.Y.S.3d 770 [2019], lv denied 34 N.Y.3d 1016, 114 N.Y.S.3d 760, 138 N.E.3d 489 [Nov. 29, 2019] ; People v. Hunt, 176 A.D.3d 1253, 1253–1254, 111 N.Y.S.3d 134 [2019] ). Additionally, defendant executed a detailed written waiver in open court, which he reviewed with the assistance of counsel and assured the court that he had read and understood (see People v. Stebbins, 171 A.D.3d 1395, 1396, 98 N.Y.S.3d 670 [2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 698, 130 N.E.3d 1308 [2019] ; People v. Johnson, 170 A.D.3d 1274, 1275, 95 N.Y.S.3d 467 [2019] ; People v. Taft, 169 A.D.3d 1266, 1267, 94 N.Y.S.3d 726 [2019], lv denied 33 N.Y.3d 1074, 105 N.Y.S.3d 26, 129 N.E.3d 346 [2019] ). Under these circumstances, we find that defendant knowingly, intelligently and voluntarily waived his

179 A.D.3d 1222

right to appeal. In light of the valid appeal waiver, defendant's challenge to the severity of the agreed-upon sentence has been foreclosed (see People v. Brassard, 175 A.D.3d 1723, 1724, 109 N.Y.S.3d 510 [2019] ; People v. Bayne, 175 A.D.3d 1722, 1723, 107 N.Y.S.3d 192 [2019] ; People v. Cannelli, 173 A.D.3d 1567, 1568, 101 N.Y.S.3d 668 [2019] ).

Although defendant's challenge to the voluntariness of his plea and his ineffective assistance of counsel claim – to the extent that it impacts the voluntariness of his plea – survive his valid appeal waiver, these issues are unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion, despite having ample opportunity to do so prior to sentencing (see People v. Horton, 173...