People v. McDonald, 109939

• Decision Date: 04 October 2018
• Docket Number: 109939
• Citation: 165 A.D.3d 1327,83 N.Y.S.3d 751
• Parties: The PEOPLE of the State of New York, Respondent, v. Bryan C. MCDONALD, Appellant.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 1327
83 N.Y.S.3d 751

The PEOPLE of the State of New York, Respondent,
v.
Bryan C. MCDONALD, Appellant.

109939

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

Calendar Date: September 4, 2018
Decided and Entered: October 4, 2018

83 N.Y.S.3d 752

D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), for appellant.

Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.

Before: McCarthy, J.P., Devine, Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a judgment of the County Court of St. Lawrence County (Champagne, J.), rendered December 5, 2016, convicting defendant upon his plea of guilty of the crimes of attempted assault in the second degree (two counts).

Defendant, formerly a United States Border Patrol agent, was indicted and charged with assault in the second degree under Penal Law § 120.05(12). The charges stemmed from an incident that occurred in December 2015 as defendant and his spouse were driving home from a family member's retirement party. As defendant slowed to turn off of County Route 37 in the Town of Massena, St. Lawrence County, his wife, who had been drinking earlier in the evening, announced that she was going to be sick, opened the passenger door of the vehicle and either stepped or fell out onto the travel portion of the road. Shortly thereafter, defendant's wife was struck and killed by an oncoming car. According to defendant, he "lost it and started swinging," inflicting various injuries upon the subject victims – two uninvolved motorists who stopped to offer assistance.

After County Court denied defendant's motion to dismiss the indictment as legally insufficient and granted the People's motion to preclude any evidence in support of defendant's proffered defense of extreme emotional disturbance, defendant agreed to waive his right to appeal and plead guilty to attempted assault in the second degree (two counts) in exchange for concurrent, five-year terms of probation. Defendant thereafter pleaded guilty in conformity with the terms of the plea agreement, and County Court imposed the promised concurrent terms of probation. Defendant now appeals.

Contrary to defendant's assertion, he was apprised at the start of the plea colloquy that a waiver of his right to appeal was a condition of the plea agreement; County Court then explained that the appeal waiver was separate and distinct from the trial-related rights that defendant was forfeiting, and defendant, in

83 N.Y.S.3d 753

turn, confirmed his understanding of the waiver (see People v. Chaney, 160 A.D.3d 1281, 1282–1283, 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] ; People v. LaRose, 160 A.D.3d 1215, 1215, 71 N.Y.S.3d 916 [2018], lv denied 31 N.Y.3d 1150, 83 N.Y.S.3d 432, 108 N.E.3d 506 [2018] ). Additionally, defendant signed a detailed written waiver in open court and assured County Court that he had read the waiver, understood its contents, was prepared to abide by its terms and had been afforded sufficient time to discuss the waiver with counsel (see People v. Venable, 161 A.D.3d 1315, 1315, 73 N.Y.S.3d 459 [2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018] ; People v. Smith, 157 A.D.3d 1059, 1059, 69 N.Y.S.3d 190 [2018], lv denied 31 N.Y.3d 987, 77 N.Y.S.3d 665, 102 N.E.3d 442 [2018] ). Under these circumstances, we find that...