People v. Michaels

• Decision Date: 29 April 1993
• Citation: 597 N.Y.S.2d 246,192 A.D.2d 959
• Parties: The PEOPLE of the State of New York, Respondent, v. Ronald "Billy" MICHAELS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 246

597 N.Y.S.2d 246

192 A.D.2d 959

The PEOPLE of the State of New York, Respondent, v. Ronald "Billy" MICHAELS, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 29, 1993.

James P. Connolly, Castleton, for appellant.

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

Before MIKOLL, J.P., and YESAWICH, LEVINE, MERCURE and CREW, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Montgomery County (Aison, J.), rendered May 6, 1991, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Contrary to defendant's contentions, a review of the record reveals that defendant knowingly, voluntarily and intelligently waived his right to appeal. County Court fully advised defendant of the terms of the plea bargain and the consequences of the plea, including that he was waiving his right to appeal. He acknowledged his acceptance of the plea and his understanding that he was waiving his right to appeal (see, People v. Li Castro, 179 A.D.2d 890, 579 N.Y.S.2d 909, lv. denied 79 N.Y.2d 1003, 584 N.Y.S.2d 458, 594 N.E.2d 952; People v. Brown, 160 A.D.2d 1039, 553 N.Y.S.2d 246). Thus, the waiver is fully enforceable and precludes appellate review (see, People v. Marziale, 182 A.D.2d 1035, 583 N.Y.S.2d 36, lv. denied 80 N.Y.2d 835, 587 N.Y.S.2d 919, 600 N.E.2d 646).

Defendant further argues that the waiver was invalid because he was pressured to accept the plea bargain based on the Trial Judge's refusal to recuse himself. He claims that he was forced to either accept the plea or face a trial before that Judge. This claim is in essence a challenge to the voluntariness of the plea itself. There is, however, no evidence that the plea was coerced. Defendant acknowledged that he had enough time to consider the terms of the plea, that he had consulted with his attorney and that he had not been pressured. Sufficient inquiry was made by County Court to defendant and thus the plea itself was voluntarily, knowingly and intelligently made (see, People v. Ross, 182 A.D.2d 1022, 583 N.Y.S.2d 34, appeal dismissed 80 N.Y.2d 934, 589 N.Y.S.2d 861, 603 N.E.2d 966).

Defendant also claims that the waiver of his right to appeal did not include a waiver of his right to challenge whether the sentence was harsh and excessive. We disagree. Under the circumstances of this case, defendant's waiver extended to a waiver of his right to challenge his sentence. He negotiated for the sentence and it was promised to him as part of the plea agreement (see, People v. Burk, 181 A.D.2d 74, 586 N.Y.S.2d 140, lv. denied 80 N.Y.2d 927, 589 N.Y.S.2d 855, 603 N.E.2d 960; see also, People v. Moissett, 154 A.D.2d 786, 546 N.Y.S.2d 463, ...