People v. Pugliese

• Decision Date: 30 July 2020
• Docket Number: 110714
• Citation: 185 A.D.3d 1358,126 N.Y.S.3d 436 (Mem)
• Parties: The PEOPLE of the State of New York, Respondent, v. Jennifer M. PUGLIESE, Appellant.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 1358

126 N.Y.S.3d 436 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Jennifer M. PUGLIESE, Appellant.

110714

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

Calendar Date: June 26, 2020

Decided and Entered: July 30, 2020

Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Mulvey, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.), rendered December 1, 2017, convicting defendant upon her plea of guilty of the crime of promoting prison contraband in the first degree.

Defendant was found to be in possession of a narcotic drug while she was incarcerated and was charged in an indictment with, among other things, promoting prison contraband in the first degree. She pleaded guilty to this crime in satisfaction of the indictment and was required to waive her right to appeal. In accordance with the terms of the plea agreement, she was sentenced as a second felony offender to 2 to 4 years in prison, to run consecutively to the sentence that she was then serving. Defendant appeals.

Defendant contends that her waiver of the right to appeal was invalid and does not foreclose her from challenging the sentence as harsh and excessive. Based upon our review of the record, we disagree. During the plea colloquy, County Court explained the trial-related rights that defendant was relinquishing by pleading guilty and made it clear that the right to appeal was separate and distinct from these rights (see People v. Weidenheimer, 181 A.D.3d 1096, 1096–1097, 122 N.Y.S.3d 149 [2020] ; People v. Diggs, 178 A.D.3d 1203, 1204, 116 N.Y.S.3d 707 [2019], lv denied 34 N.Y.3d 1158, 120 N.Y.S.3d 234, 142 N.E.3d 1136 [2020] ). When defendant asked if she had to waive her right to appeal, the court explained that this was part of the plea agreement. In addition, after reviewing the written appeal waiver with counsel in open court, defendant stated that she read and understood it, and that she had affixed her signature (see People v. Weidenheimer, 181 A.D.3d at 1097, 122 N.Y.S.3d 149 ; People v. Hall, 167 A.D.3d 1165, 1165–1166, 89 N.Y.S.3d 481 [2018], lvs denied 32 N.Y.3d 1201, 1204, 99 N.Y.S.3d 246, 122 N.E.3d 1158 [2019] ). The written appeal waiver reiterated that it was separate and distinct from those rights that were automatically forfeited upon defendant's guilty plea (see People v. Crawford, 181 A.D.3d 1057, 1058, 119 N.Y.S.3d 633 [2020] ; People v. Boyette, 175 A.D.3d 751, 752, 103 N.Y.S.3d 870 [2019], lv denied 34 N.Y.3d 979, 113 N.Y.S.3d 648, 137 N.E.3d 18 [2019] ), and specifically encompassed her challenge to the sentence. Under the circumstances presented, and given that we discern no other infirmities in the waiver (compare People v. Thomas, 34 N.Y.3d 545, 562–563, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Barrales, 179 A.D.3d...