People v. Muller, 109222
| Decision Date | 15 November 2018 |
| Docket Number | 109222 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Ernest MULLER, Also Known as Big E, Appellant. |
| Court | New York Supreme Court — Appellate Division |
166 A.D.3d 1240
88 N.Y.S.3d 279
The PEOPLE of the State of New York, Respondent,
v.
Ernest MULLER, Also Known as Big E, Appellant.
109222
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: October 15, 2018
Decided and Entered: November 15, 2018
Theresa M. Suozzi, Saratoga Springs, for appellant.
Barbara D. Underwood, Attorney General, New York City (Lisa E. Fleischmann of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.
In satisfaction of a 75–count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and waived the right to appeal, with the understanding that his sentence would range from time served to five years in prison, to be followed by two years of postrelease supervision. Despite defendant being arrested on a new charge of criminal sale of a controlled substance in the third degree while awaiting sentencing and admittedly violating a condition of his plea agreement that he cooperate with the People in the prosecution of his coconspirators, County Court adhered to the terms of the plea agreement and sentenced him to five years in prison, to be followed by two years of postrelease supervision. Defendant now appeals.
We affirm. To the extent that defendant challenges the validity of his waiver of the right to appeal, the record reflects
that his combined oral and written waiver of the right to appeal was knowing, intelligent and voluntary (see People v. Sanders , 25 N.Y.3d 337, 339–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Lopez , 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2009] ). County Court distinguished the right to appeal from the rights automatically forfeited by a guilty plea. Defendant then signed a written waiver in open court after reading it and discussing it with counsel and affirmed to the court his understanding thereof. Under these circumstances, we find that defendant validly waived the right to appeal (see People v. Dutcher , 156 A.D.3d 1122, 1122, 67...
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