People v. McCall

• Decision Date: 19 January 2017
• Citation: 146 A.D.3d 1156,44 N.Y.S.3d 795,2017 N.Y. Slip Op. 00346
• Parties: The PEOPLE of the State of New York, Respondent, v. Jowaan McCALL, also known as J, Appellant.
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 1156
44 N.Y.S.3d 795
2017 N.Y. Slip Op. 00346

The PEOPLE of the State of New York, Respondent,
v.
Jowaan McCALL, also known as J, Appellant.

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

Jan. 19, 2017.

44 N.Y.S.3d 796

George J. Hoffman Jr., Albany, for appellant.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

Before: PETERS, P.J., GARRY, ROSE, DEVINE and MULVEY, JJ.

GARRY, J.

146 A.D.3d 1156

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered February 11, 2015 in Albany County, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

146 A.D.3d 1157

Defendant pleaded guilty to criminal sale of a controlled substance in the third degree in full satisfaction of a three-count indictment, and the plea agreement also included the waiver of the right to appeal. Supreme Court sentenced defendant, as a second felony offender, to 5 ½ years in prison and three years of postrelease supervision. Defendant appeals.

We affirm. Initially, we reject defendant's contention that his waiver of the right to appeal was invalid. The record discloses that Supreme Court distinguished the right to appeal from the rights automatically forfeited by a guilty plea and defendant affirmed his understanding of the waiver. Defendant also signed a written waiver after conferring with counsel regarding its contents. Accordingly, defendant's waiver of the right to appeal his conviction and sentence was knowing, intelligent and voluntary (see People v. Miller, 137 A.D.3d 1485, 1485, 29 N.Y.S.3d 586 [2016] ; People v. Clark, 135 A.D.3d 1239, 1239–1240, 23 N.Y.S.3d 481 [2016], lv. denied 27 N.Y.3d 995, 38 N.Y.S.3d 105, 59 N.E.3d 1217 [2016] ). Defendant's valid appeal waiver precludes his claim that his sentence is harsh and excessive (see People v. Woods, 141 AD3d 954, 955, 35 N.Y.S.3d 578 [2016], lv. denied 28 N.Y.3d 1076, –––...