People v. Thomas

• Decision Date: 11 March 2010
• Parties: The PEOPLE of the State of New York, Respondent,v.Robert E. THOMAS, Appellant.
• Court: New York Supreme Court — Appellate Division

71 A.D.3d 1231
896 N.Y.S.2d 264
2010 N.Y. Slip Op. 01852

The PEOPLE of the State of New York, Respondent,
v.
Robert E. THOMAS, Appellant.

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

March 11, 2010.

[896 N.Y.S.2d 265]

John A. Cirando, Syracuse, for appellant.Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), for respondent.Before: PETERS, J.P., ROSE, LAHTINEN, MALONE JR. and KAVANAGH, JJ.PETERS, J.P.

[71 A.D.3d 1231] Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), entered October 6, 2008, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

In satisfaction of a six-count indictment and other pending charges, defendant pleaded guilty to one count of burglary in the second degree. As part of the plea agreement, defendant waived his right to appeal and agreed to pay restitution. County Court sentenced defendant to the agreed-upon term of nine years in prison, followed by five years of postrelease supervision, and ordered him to pay restitution in the amount of $4,556.01. He now appeals.

We reject defendant's assertion that he did not knowingly, voluntarily and intelligently waive his right to appeal. A review of the plea minutes reveals that County Court explained to defendant that he was waiving his right to appeal and described the nature of that right “without lumping [it] into the panoply of trial rights automatically forfeited upon pleading guilty” ( People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]; see People v. Getter, 52 A.D.3d 1117, 1118, 860 N.Y.S.2d 320 [2008]; People v. Romano, 45 A.D.3d 910, 914, 845 N.Y.S.2d 151 [2007], lv. denied 10 N.Y.3d 770, 854 N.Y.S.2d 332, 883 N.E.2d 1267 [2008] ). Defendant also executed a written appeal waiver in open court, which “adequately described the scope of the appellate rights waived and acknowledged that defendant was [knowingly and] intentionally waiving those rights after having been given sufficient time to discuss the consequences of the waiver with counsel” ( People v. Gilmour, 61 A.D.3d 1122, 1123, 876 N.Y.S.2d 553 [2009], lv. denied 12 N.Y.3d 925, 884 N.Y.S.2d 706, 912 N.E.2d 1087 [2009] ). [71 A.D.3d 1232] Under these circumstances, we find the appeal waiver to be valid ( see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006];

[896 N.Y.S.2d 266]

People v. Gilmour, 61 A.D.3d at 1123, 876 N.Y.S.2d 553; People v. Fludd, 33 A.D.3d 1124, 1125, 822 N.Y.S.2d 821 [2006], lv. denied 9 N.Y.3d 843, 840 N.Y.S.2d 770, 872 N.E.2d 883 [2007] ).

Defendant's challenge to the factual sufficiency of the plea allocution is foreclosed by his valid appeal waiver and is also unpreserved due to his failure to move to withdraw his plea or vacate the judgment of conviction ( see People v. Harris, 51 A.D.3d 1335, 1336, 860 N.Y.S.2d 643 [2008], lv. denied 11 N.Y.3d...