People v. Korona

• Citation: 603 N.Y.S.2d 88,197 A.D.2d 788
• Parties: The PEOPLE of the State of New York, Respondent, v. Roy N. KORONA, Appellant.
• Decision Date: 28 October 1993
• Court: New York Supreme Court Appellate Division

Page 88

603 N.Y.S.2d 88

197 A.D.2d 788

The PEOPLE of the State of New York, Respondent, v. Roy N. KORONA, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 28, 1993.

Robert Krzys, Amsterdam, for appellant.

Guy P. Tomlinson, Dist. Atty. (Joseph M. Sise, of counsel), Fonda, for respondent.

Before MIKOLL, J.P., and MERCURE, CARDONA, MAHONEY and CASEY, JJ.

MAHONEY, Justice.

Appeals (1) from a judgment of the County Court of Montgomery County (Aison, J.), rendered November 9, 1990, upon a verdict convicting defendant of the crime of criminal sale of a controlled substance in the third degree, and (2) from a judgment of said court, rendered November 9, 1990, convictingdefendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

Defendant was the subject of two separate indictments dated December 11, 1989 charging him with, inter alia, various counts of criminal possession and sale of a controlled substance in the third degree. The first indictment, No. 136-89, was against defendant alone; the second, No. 134-89, was against defendant and another and proceeded upon an acting in concert or accomplice theory. Following a jury trial on the first indictment, defendant was convicted of criminal sale of a controlled substance in the third degree. On the day sentencing was scheduled to occur relative to that conviction, defendant entered a plea of guilty to criminal possession of a controlled substance in the third degree in full satisfaction of the charges contained in the second indictment. As part of his plea agreement, defendant expressly waived his rights to appeal from the convictions arising from both indictments. He subsequently was sentenced on both convictions to concurrent indeterminate prison terms of 6 to 18 years. Claiming errors in the denial of certain pretrial motions in connection with both indictments, alleged proof defects in the trial of the first indictment and asserting that the sentences imposed were excessive, defendant now appeals.

In our view, defendant's express waiver of the right to appeal both judgments of conviction is valid and enforceable and precludes our consideration of most of the arguments advanced. It is now well settled that a defendant ordinarily may waive his or her right to appeal as part of a negotiated plea as long as the waiver is knowingly and voluntarily made (see, People v. Callahan, 80 N.Y.2d 273, 590 N.Y.S.2d 46, 604 N.E.2d 108; People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022). While the waiver in this case is slightly different from most in that defendant waived appellate review not only of the guilty plea conviction but also of his prior jury trial conviction, in view of the announced lack of "affirmative public policy to be served in fostering appeals or prohibiting their waiver" (People v. Seaberg, supra, 74 N.Y.2d at 8, 543 N.Y.S.2d 968, 541 N.E.2d 1022) combined with the strong public policy of encouraging "a prompt resolution of criminal proceedings with all the benefits that enure from final disposition" (id., at 7, 543 N.Y.S.2d 968, 541 N.E.2d 1022), we see nothing offensive, constitutionally, statutorily or policywise, in permitting a defendant to waive rights to appeal in more than one conviction as part of a negotiated plea in situations such as this where the criminal proceedings are so closely connected.

Nor is there any merit to defendant's claim that the waiver of his rights to appeal were not knowingly, voluntarily and intelligently made or that the waiver was unreasonable or inappropriate under the circumstances. Defendant was 29 years old at the time of the plea, articulate and no stranger to the criminal justice system. A review of the record reveals that County Court informed defendant twice that one of the consequences of his plea would be waiver of his right to appeal both the guilty plea conviction and the jury trial conviction, stating at one...