People v. Munger
| Decision Date | 29 May 2014 |
| Citation | 2014 N.Y. Slip Op. 03887,987 N.Y.S.2d 118,117 A.D.3d 1343 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Brian S. MUNGER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Paul J. Connolly, Delmar, for appellant.
James A. Murphy III, District Attorney, Ballston Spa (Ann C. Sullivan of counsel), for respondent.
Before: PETERS, P.J., STEIN, McCARTHY and EGAN JR., JJ.
Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered August 20, 2012, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.
Defendant waived indictment and pleaded guilty to a superior court information charging him with attempted criminal sale of a controlled substance in the third degree. In accordance with the plea agreement, defendant was sentenced as a second felony offender to a prison term of 2 1/2 years followed by three years of postrelease supervision, with a recommendation for participation in a shock incarceration program. Defendant now appeals.
We affirm. Contrary to defendant's contention, both the written waiver and the plea colloquy informed him that his right to appeal was “ ‘separate and distinct’ ” from those rights automatically forfeited upon pleading guilty and, therefore, we conclude that he knowingly, intelligently and voluntarily waived his right to appeal his conviction and sentence ( People v. Baliraj, 101 A.D.3d 1175, 1176, 954 N.Y.S.2d 711 [2012],lv. denied21 N.Y.3d 941, 968 N.Y.S.2d 3, 990 N.E.2d 137 [2013], quoting People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];see People v. Martin, 105 A.D.3d 1266, 1267, 963 N.Y.S.2d 770 [2013] ). Given that his right to appeal was validly waived, we are precluded from reviewing his contention that the sentence imposed was harsh and excessive ( see People v. Newton, 113 A.D.3d 1000, 1001, 979 N.Y.S.2d 545 [2014];People v. Fling, 112 A.D.3d 1001, 1002, 975 N.Y.S.2d 923 [2013] ).
ORDERED that the judgment is affirmed.
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...waiver of the right to appeal his conviction and sentence was knowing, intelligent and voluntary ( see People v. Munger, 117 A.D.3d 1343, 1343, 987 N.Y.S.2d 118 [2014], lv. denied 23 N.Y.3d 1040, 993 N.Y.S.2d 254, 17 N.E.3d 509 [2014]; People v. Fligger, 117 A.D.3d 1343, 1344, 986 N.Y.S.2d ......
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...waiver of the right to appeal his conviction and sentence was knowing, intelligent and voluntary (see People v. Munger, 117 A.D.3d 1343, 1343, 987 N.Y.S.2d 118 [2014], lv. denied 23 N.Y.3d 1040, 993 N.Y.S.2d 254, 17 N.E.3d 509 [2014] ; People v. Fligger, 117 A.D.3d 1343, 1344, 986 N.Y.S.2d ......
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...imposed as 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. Munger, 117 A.D.3d 1343, 1343, 987 N.Y.S.2d 118 [2014];People v. Waldron, 115 A.D.3d at 1117, 982 N.Y.S.2d 411). ORDERED that the judgment is affirmed, and matter remitted ......