People v. Rollins

• Decision Date: 17 March 2022
• Docket Number: 110281
• Citation: 203 A.D.3d 1386,164 N.Y.S.3d 724
• Parties: The PEOPLE of the State of New York, Respondent, v. Maurice M. ROLLINS, Appellant.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1386
164 N.Y.S.3d 724

The PEOPLE of the State of New York, Respondent,
v.
Maurice M. ROLLINS, Appellant.

110281

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

Calendar Date: February 17, 2022
Decided and Entered: March 17, 2022

164 N.Y.S.3d 725

Robert C. Kilmer, Binghamton, for appellant.

Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.

Before: Garry, P.J., Lynch, Pritzker, Colangelo and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J.

Appeal from a judgment of the County Court of Broome County (Dooley, J.), rendered September 8, 2017, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

In July 2017, defendant and his codefendants were charged in an 81–count indictment with various crimes related to the repeated sale of controlled substances. In satisfaction of the 45 counts against him, and in exchange for a maximum prison sentence of eight years, defendant pleaded guilty to criminal possession of a controlled substance in the third degree and agreed to waive his right to appeal, among other things. County Court thereafter sentenced defendant, pursuant to the terms of the plea agreement, to a prison sentence of six years followed by two years of postrelease supervision. Defendant appeals.

164 N.Y.S.3d 726

We affirm. Initially, we are unpersuaded by defendant's challenge to the validity of his appeal waiver on the basis that his counsel's alleged failure to adequately explain the waiver rendered defendant's agreement thereto unknowing. Our review of the record reveals that defendant was informed that the appeal waiver was a term of the plea agreement prior to pleading guilty, and County Court assured itself of defendant's understanding of the waiver by engaging in a lengthy discussion of the nature of the waiver and explaining that the right to appeal was separate and distinct from those rights automatically forfeited by pleading guilty (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Hunt, 176 A.D.3d 1253, 1253–1254, 111 N.Y.S.3d 134 [2019] ). Defendant confirmed his understanding of the waiver throughout the court's discussion and, ultimately, that his agreement to waive his right to appeal was voluntary and made after discussing the matter with his counsel. Further, defendant reviewed with counsel and executed a written waiver of appeal that adequately described the nature and the scope of the appellate rights being waived, and the court thereafter confirmed defendant's understanding thereof. Under these circumstances, we are satisfied that defendant's appeal waiver was knowingly, voluntarily and intelligently entered (see People v. Feltz, 190 A.D.3d 1027, 1028, 138 N.Y.S.3d 727 [2021] ; People v. Dill, 179 A.D.3d 1354, 1354–1355, 117 N.Y.S.3d 747 [2020] ; compare People v. Latifi, 171 A.D.3d 1351, 1351, 98 N.Y.S.3d 668 [2019] ). Accordingly, defendant's challenge to his agreed-upon sentence, based upon his allegation that County Court improperly relied upon its own subjective impressions of defendant's criminal activity in imposing the sentence, is precluded by his valid appeal waiver (see People v. Blair, 148 A.D.3d 1426, 1426–1427, 50 N.Y.S.3d 182 [2017], lv denied 29 N.Y.3d 1029, 62 N.Y.S.3d 297, 84 N.E.3d 969 [2017] ; see also People v. Yaw, 120 A.D.3d 1447, 1449, 991 N.Y.S.2d 677 [2014], lv denied 24 N.Y.3d 1005, 997 N.Y.S.2d 123, 21 N.E.3d 575 [2014] ).

Defendant next challenges the voluntariness of his plea based upon certain statements allegedly made by his defense counsel. Although his claim impacts upon the voluntariness of his plea and, thus, survives his appeal waiver, it is unpreserved for our review as the record fails to disclose that he made an appropriate postallocution motion (see People v. White, 172 A.D.3d 1822, 1823–1824, 101 N.Y.S.3d 519 [2019], lv denied 33 N.Y.3d 1110, 106 N.Y.S.3d 661, 130 N.E.3d 1271 [2019] ; People v. Moore, 169 A.D.3d 1110, 1112, 93 N.Y.S.3d 464 [2019], lv denied 33 N.Y.3d 979, 101 N.Y.S.3d 233, 124 N.E.3d 722 [2019] ; People v. Davis, 150 A.D.3d 1396,...