People v. Martin

• Decision Date: 25 April 2013
• Citation: 963 N.Y.S.2d 770,2013 N.Y. Slip Op. 02785,105 A.D.3d 1266
• Parties: The PEOPLE of the State of New York, Respondent, v. Dale MARTIN II, Appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 1266
963 N.Y.S.2d 770
2013 N.Y. Slip Op. 02785

The PEOPLE of the State of New York, Respondent,
v.
Dale MARTIN II, Appellant.

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

April 25, 2013.

Lisa A. Burgess, Indian Lake, for appellant.

Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), for respondent.

Before: MERCURE, J.P., SPAIN, McCARTHY and EGAN JR., JJ.

SPAIN, J.

[105 A.D.3d 1266]Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered December 19, 2011, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree.

As part of an agreement resolving charges arising out of numerous incidents, defendant pleaded guilty to attempted assault

[963 N.Y.S.2d 771]

in the second degree and waived his right to appeal. County Court, in turn, agreed to sentence defendant to a prison term of 1 1/3 to 4 years and to direct his enrollment in the shock incarceration program if he successfully continued drug treatment. ¹ Defendant thereafter tested positive for an unprescribed medication and was discharged from the treatment program. [105 A.D.3d 1267]County Court nevertheless imposed the initially contemplated prison sentence, and defendant now appeals.

We affirm. Defendant stated during the plea colloquy that he understood his right to appeal and wished to waive it, executed a detailed written waiver, then reiterated at sentencing that he understood that the right to appeal was separate and distinct from the other rights he was giving up ( see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). Accordingly, we conclude that he knowingly, intelligently and voluntarily waived his right to appeal ( see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011];People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;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] ). Inasmuch as County Court adhered to its sentencing commitment, defendant's valid appeal waiver precludes his sole assertion that the sentence was harsh and excessive ( see People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;People v. Koumjian, 101 A.D.3d 1175, 1175, 954 N.Y.S.2d 710 [2012],lv. denied20 N.Y.3d 1100, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [Mar. 6, 2013];People v. Garrand, 100 A.D.3d 1156, 1157, 953 N.Y.S.2d 727 [2012],lv...