People v. Velazquez

• Decision Date: 11 February 2015
• Citation: 3 N.Y.S.3d 193,2015 N.Y. Slip Op. 01206,125 A.D.3d 1063
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard VELAZQUEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

?125 A.D.3d 1063
3 N.Y.S.3d 193
2015 N.Y. Slip Op. 01206

The PEOPLE of the State of New York, Respondent,
v.
Richard VELAZQUEZ, Appellant.

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

Feb. 11, 2015

Affirmed.

[3 N.Y.S.3d 194]

John P.M. Wappett, Public Defender, Lake George (Marcy I. Flores of counsel), for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Jason M. Carusone of counsel), for respondent.

Before: McCARTHY, J.P., ROSE, EGAN JR. and DEVINE, JJ. EGAN JR., J.

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered April 25, 2012, convicting defendant upon his plea of guilty of the crimes of assault in the second degree and strangulation in the second degree.

In satisfaction of a seven-count indictment, defendant entered an Alford plea to one count of assault in the second degree and one count of strangulation in the second degree and waived his right to appeal. In accordance with the plea agreement, defendant was sentenced to an aggregate prison term of 10 years followed by five years of postrelease supervision. Defendant now appeals.

We affirm. Initially, we note that defendant's waiver of the right to appeal was valid inasmuch as County Court “distinguished the right to appeal from the rights automatically forfeited upon a guilty plea and explained the consequences of defendant's plea,” and defendant then reviewed and executed a detailed written waiver with counsel in open court ( People v. Chavis, 117 A.D.3d 1193, 1194, 987 N.Y.S.2d 111 [2014]; see People v. Koumjian, 101 A.D.3d 1175, 1175, 954 N.Y.S.2d 710 [2012], lv. denied 20 N.Y.3d 1100, 965 N.Y.S.2d 797, 988 N.E.2d 535 [2013] ). That waiver precludes defendant's challenge to the severity of his sentence ( see People v. Chavis, 117 A.D.3d at 1195, 987 N.Y.S.2d 111; People v. Koumjian, 101 A.D.3d at 1175, 954 N.Y.S.2d 710). While not precluded by the waiver, defendant's assertion that his plea was involuntary because medication administered at the local jail clouded his judgment is unpreserved for our review in the absence of a proper postallocution motion, and the narrow exception to the preservation requirement is inapplicable here ( see People v. Chavis, 117 A.D.3d at 1194, 987 N.Y.S.2d 111; compare

[3 N.Y.S.3d 195]

People v. Hennessey, 111 A.D.3d 1166, 1168–1169, 975 N.Y.S.2d 502 [2013] ).

Although defendant's remaining challenges—that the imposition of consecutive sentences was illegal and that the uniform sentence and commitment form must be amended—also survive his waiver ( see People v. Koumjian, 101 A.D.3d at 1175, 954 N.Y.S.2d 710; People v. Vasavada, 93 A.D.3d 893, 894, 938 N.Y.S.2d 924 [2012], lv. denied 19 N.Y.3d 978, 950 N.Y.S.2d 360, 973 N.E.2d 770 [2012] ), we reject them as meritless. “[E]ven if the statutory elements of multiple offenses overlap, sentences may be imposed to run consecutively when multiple offenses are committed through separate and distinct acts, though they are part of a single transaction” ( People v....