People v. Fling

• Decision Date: 05 December 2013
• Parties: The PEOPLE of the State of New York, Respondent, v. Calvin H. FLING Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1001
975 N.Y.S.2d 923
2013 N.Y. Slip Op. 08156

The PEOPLE of the State of New York, Respondent,
v.
Calvin H. FLING Jr., Appellant.

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

Dec. 5, 2013.

Paul J. Connolly, Delmar, for appellant.

James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.

Before: Peters, P.J., Lahtinen, Spain and Egan Jr., JJ.

[975 N.Y.S.2d 924]

LAHTINEN, J.

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered June 22, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the second degree.

Defendant waived indictment and agreed to be prosecuted by a superior court information charging him with criminal possession of a controlled substance in the second degree. In conjunction with his plea of guilty to that charge, he waived his right to appeal his conviction and sentence orally and in a written waiver. He was thereafter sentenced as a second felony offender, in accordance with the plea agreement, to 6 1/2 years in prison followed by five years of postrelease supervision. Defendant now appeals, contending that his appeal waiver is invalid and that his sentence is harsh and excessive.

We affirm. Despite defendant's contention otherwise, we find that he knowingly waived his right to appeal both his plea and sentence. In our view, defendant was properly advised regarding the nature of the appeal rights he was waiving and the consequences of doing so ( see People v. Lopez, 97 A.D.3d 853, 853, 948 N.Y.S.2d 174 [2012], lv. denied19 N.Y.3d 1027, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012]; cf. People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 [2012]; People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ). Even if we accept defendant's argument that one of the statements that County Court made while discussing the waiver was ambiguous, any possible confusion was clearly resolved in the written waiver, which defendant acknowledged that he signed after fully discussing its meaning with counsel ( see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006] ). As it stands, the record confirms that defendant was made aware of the appropriate information to make a knowing and voluntary choice ( see People v. Frasier, 105 A.D.3d 1079, 1080, 962 N.Y.S.2d 787 [2013]; People v. White, 96 A.D.3d 1299, 1299–1300, 946...