People v. Garcia

• Decision Date: 02 August 2018
• Docket Number: 108471
• Parties: The PEOPLE of the State of New York, Respondent, v. Joy GARCIA, Appellant.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 958

77 N.Y.S.3d 912 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Joy GARCIA, Appellant.

108471

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

Calendar Date: June 11, 2018

Decided and Entered: August 2, 2018

G. Scott Walling, Slingerlands, for appellant.

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

Before: Garry, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered February 19, 2016, convicting defendant upon her plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.

In full satisfaction of a six-count indictment, defendant agreed to plead guilty to the amended/reduced charge of criminal possession of a controlled substance in the fifth degree in exchange for a recommended sentence of five years of probation. The negotiated plea agreement also required defendant to waive her right to appeal. Defendant pleaded guilty to the foregoing charge and, following two requested adjournments to allow defendant to consider whether she wished to withdraw her plea, County Court imposed the contemplated sentence. This appeal by defendant ensued.

We affirm. Contrary to defendant's assertion, we find that her waiver of the right to appeal was valid. The plea colloquy reflects that County Court advised defendant that the waiver of the right to appeal was separate and distinct from the trial-related rights that defendant was forfeiting by pleading guilty (see People v. Dutcher, 156 A.D.3d 1122, 1122, 67 N.Y.S.3d 354 [2017] ; People v. Lester, 141 A.D.3d 951, 952–953, 36 N.Y.S.3d 288 [2016], lv denied 28 N.Y.3d 1185, 52 N.Y.S.3d 712, 75 N.E.3d 104 [2017] ); after confirming that she had been afforded sufficient time to review the written waiver with counsel, defendant executed the written waiver in open court, assured the court that she understood its terms and indicated that she had no questions relative thereto (see People v. Sharpe, 159 A.D.3d 1192, 1193, 72 N.Y.S.3d 648 [2018], lv denied 31 N.Y.3d 1121, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2018 WL 3392993 [June 12, 2018] ; People v. Lambert, 151 A.D.3d 1119, 1119, 55 N.Y.S.3d 526 [2017], lv denied 29 N.Y.3d 1092, 63 N.Y.S.3d 9, 85 N.E.3d 104 [2017] ). Under these circumstances, the combined oral and written waiver establish that defendant knowingly, intelligently and voluntarily waived her right to appeal (see People v. Lawrence, 155 A.D.3d 1259, 1259–1260, 63 N.Y.S.3d 908 [2017] ; People v. McCall, 146 A.D.3d 1156, 1157, 44 N.Y.S.3d 795 [2017], lvs denied 29 N.Y.3d 1033, 1034, 62 N.Y.S.3d 302, 303, 84 N.E.3d 974, 975 [2017]; People v. Mann, 140 A.D.3d 1532, 1533, 33 N.Y.S.3d 779 [2016] ). In light of the valid waiver, defendant's challenge to the...