People v. Ovalles
| Decision Date | 23 May 2018 |
| Docket Number | 2017–01082,Ind. No. 126/16 |
| Citation | 73 N.Y.S.3d 894 (Mem),161 A.D.3d 1107 |
| Parties | The PEOPLE, etc., respondent, v. Daniel Rodrigues OVALLES, appellant. |
| Court | New York Supreme Court — Appellate Division |
Carol Kahn, New York, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller of counsel), for respondent.
SHERI S. ROMAN, J.P., SANDRA L. SGROI, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered January 6, 2017, convicting him of attempted criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's waiver of his right to appeal was valid (see People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 254, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Joseph, 142 A.D.3d 627, 627, 36 N.Y.S.3d 605 ). The record of the plea proceeding demonstrates that the County Court made clear to the defendant that an appeal waiver is separate and distinct from those rights automatically forfeited upon a plea of guilty (see People v. Brown, 122 A.D.3d 133, 137, 992 N.Y.S.2d 297 ).
The defendant's valid waiver of his right to appeal precludes appellate review of his claim that the sentence was excessive (see People v. Joseph, 142 A.D.3d at 628, 36 N.Y.S.3d 605; People v. Appling, 94 A.D.3d 1135, 1136, 942 N.Y.S.2d 617 ) and that the procedure used to adjudicate him a second felony offender was defective (see People v. Thomas, 148 A.D.3d 734, 734, 47 N.Y.S.3d 715 ; People v. Hicks, 134 A.D.3d 854, 854, 19 N.Y.S.3d 907 ; People v. Kosse, 94 A.D.3d 908, 908, 941 N.Y.S.2d 847 ).
The defendant's remaining contention is unpreserved for appellate review, and, in any event, without merit.
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...appellate review of his claim that the procedure used to adjudicate him a second felony offender was defective (see People v. Ovalles , 161 A.D.3d 1107, 1108, 73 N.Y.S.3d 894 ; People v. Thomas , 148 A.D.3d 734, 734, 47 N.Y.S.3d 715 ; People v. Hicks , 134 A.D.3d 854, 854, 19 N.Y.S.3d 907 )......
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