People v. Greene

• Decision Date: 25 April 2019
• Docket Number: 109789
• Citation: 171 A.D.3d 1407,99 N.Y.S.3d 120
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael N. GREENE, Appellant.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 1407
99 N.Y.S.3d 120

The PEOPLE of the State of New York, Respondent,
v.
Michael N. GREENE, Appellant.

109789

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

Calendar Date: March 27, 2019
Decided and Entered: April 25, 2019

Brian M. Quinn, Albany, for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.

Before: Egan Jr., J.P., Devine, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Aarons, J.

171 A.D.3d 1407

In January 2017, defendant was charged in a four-count indictment with various crimes stemming from allegations that he robbed a pharmacy while displaying what appeared to be gun. In satisfaction of all charges, defendant accepted a plea agreement whereby he pleaded guilty to one count of robbery in the second degree and waived his right to appeal. County Court thereafter sentenced him, in accordance with the terms of the plea agreement, to a prison term of six years, followed by five years of postrelease supervision. Defendant appeals.

Initially, we reject defendant's assertion that his appeal

171 A.D.3d 1408

waiver is invalid. The record reveals that, at the outset of the plea proceeding, defendant was advised that a waiver of the right to appeal was a condition of the plea agreement, and defendant verbalized his understanding of the terms of that agreement (see People v. Williams, 167 A.D.3d 1084, 1084–1085, 89 N.Y.S.3d 440 [2018], lv denied 32 N.Y.3d 1211, 99 N.Y.S.3d 225, 122 N.E.3d 1138 [2019]; People v. Cherry, 166 A.D.3d 1220, 1221, 86 N.Y.S.3d 355 [2018] ). County Court then conveyed to defendant that his right to appeal was "separate and distinct" from the trial-related rights that he was automatically forfeiting by pleading guilty, and the court confirmed defendant's understanding that he was waiving such right (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). The record further reflects that defendant executed a written appeal waiver in open court that reiterated the same, and further recited that defendant had discussed the waiver with counsel, understood it and agreed to be bound by it (see People v. Carter, 166 A.D.3d 1212, 1213, 88 N.Y.S.3d 285 [2018] ; People v. Chaney, 160 A.D.3d 1281, 1283, 76 N.Y.S.3d 257 [2018], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ). Accordingly, we find that defendant's combined oral and written waiver of appeal was knowing, intelligent and voluntary (see People v. Wood, 161 A.D.3d 1447, 1448, 77 N.Y.S.3d 763 [2018] ; People v. Baxter, 154 A.D.3d 1010, 1011, 60 N.Y.S.3d 855 [2017] ). In light of the valid appeal waiver, defendant's challenge to the agreed-upon sentence as harsh and excessive has been foreclosed (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Walker, 166 A.D.3d 1393, 1394, 86 N.Y.S.3d 920 [2018] ).

Defendant also appears to challenge the sufficiency of the evidence before the grand jury, arguing...