People v. Terrell, 106035

• Decision Date: 24 December 2014
• Docket Number: 106035
• Citation: 999 N.Y.S.2d 586,123 A.D.3d 1341,2014 N.Y. Slip Op. 08928
• Parties: The PEOPLE of the State of New York, Respondent, v. Joan F. TERRELL, Appellant.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 1341

999 N.Y.S.2d 586

2014 N.Y. Slip Op. 08928

The PEOPLE of the State of New York, Respondent

v.Joan F. TERRELL, Appellant.

106035

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

Dec. 24, 2014.

Cheryl L. Sovern, Clifton Park, for appellant.

Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.

Before: PETERS, P.J., STEIN, GARRY, EGAN JR. and DEVINE, JJ.

Opinion

STEIN, J.

Appeal from a judgment of the County Court of Franklin County (Main, Jr., J.), rendered May 20, 2013, convicting defendant upon her plea of guilty of the crimes of assault in the second degree and endangering the welfare of a vulnerable elderly person in the first degree.

Following an investigation into the stabbing of defendant's paramour who suffers from Alzheimer's disease, defendant was arrested for assault in the first degree. Pursuant to a plea agreement, defendant waived indictment and pleaded guilty to the reduced charge of assault in the second degree and endangering the welfare of a vulnerable elderly person in the first degree as charged in a superior court information. In addition, the plea agreement required defendant to waive her right to appeal all but the sentence imposed and any constitutional issues. Defendant was thereafter sentenced to concurrent prison terms of five years, followed by three years of postrelease supervision, for the assault conviction and 1 ½ to 4 ½ years on the endangerment conviction. Defendant appeals.

We are unpersuaded by defendant's contention that the appeal waiver is invalid. County Court fully explained the nature of the right to appeal and elicited from defendant that she understood the right that she was relinquishing, which defense counsel confirmed upon conferring with defendant (see People v. Smith, 121 A.D.3d 1131, 1131–1132, 993 N.Y.S.2d 392 [2014] ; People v. Smith, 81 A.D.3d 1034, 1035, 916 N.Y.S.2d 293 [2011], lv. denied 16 N.Y.3d 899, 926 N.Y.S.2d 35, 949 N.E.2d 983 [2011] ). In our view, defendant knowingly, voluntarily and intelligently waived her right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Garrand, 100 A.D.3d 1156, 1156–1157, 953 N.Y.S.2d 727 [2012], lv. denied 20 N.Y.3d 1011, 960 N.Y.S.2d 354, 984 N.E.2d 329 [2013] ).

Next, to the extent that defendant challenges the factual sufficiency of her guilty plea, such claim is precluded by the appeal waiver (see People v. Morey, 110 A.D.3d 1378, 1379, 975 N.Y.S.2d 201 [2013], lv. denied 23 N.Y.3d 965, 988 N.Y.S.2d 572, 11 N.E.3d 722 [2014] ; People v. Durham, 110 A.D.3d 1145, 1145, 973 N.Y.S.2d 425 [2013] ), and is also unpreserved for our review as the record does not indicate that she made the appropriate postallocution motion (see People v. Watson, 115 A.D.3d 1016, 1016, 981 N.Y.S.2d 627 [2014], lv. denied 24 N.Y.3d 965, 996 N.Y.S.2d 225, 20 N.E.3d 1005 [2014] ). Finally, regarding defendant's claim that the sentence is harsh and excessive, County Court was aware of and considered all relevant factors in imposing sentence. Finding no...