| People v Vaughns |
| 2010 NY Slip Op 01024 [70 AD3d 1123] |
| February 11, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Cleo E.Vaughns, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Rose, J. Appeals (1) from a judgment of the County Court of St. Lawrence County (Rogers,J.), rendered August 13, 2008, convicting defendant upon his plea of guilty of the crime ofcriminal sale of a controlled substance in the fifth degree and burglary in the second degree, and(2) from a judgment of said court, rendered November 13, 2008, which resentenced defendantfollowing his conviction of the crime of burglary in the second degree.
Defendant pleaded guilty to criminal sale of a controlled substance in the fifth degree andburglary in the second degree in full satisfaction of six counts charged in two separateindictments.[FN*] He executed written waivers of appeal in regard to both convictions and was sentenced inaccordance with the negotiated plea agreement, as a second felony offender, to an aggregateeight-year prison term followed by 2½ years of postrelease supervision. Thereafter, CountyCourt was informed by the Department of Correctional Services that defendant's status as asecond felony offender required that a five-year period of postrelease supervision be attached tothe sentence related to defendant's conviction for burglary in the second degree (seePenal Law § 70.06 [6]; § 70.45 [2]; see generally People v McCants, 54 AD3d 445, 446 [2008]). [*2]Accordingly, County Court vacated the original sentenceassociated with that crime and, although the length of defendant's overall prison term did notchange, imposed a five-year period of postrelease supervision. Defendant appeals.
We are unpersuaded by defendant's claim that he did not knowingly, voluntarily andintelligently waive his right to appeal. Indeed, after County Court explained the significance ofwaiving one's right to appeal and confirmed that defendant was willingly doing so after havingconsulted with his attorney, defendant executed written appeal waivers in open court withrespect to both indictments (see Peoplev Mosher, 45 AD3d 970, 970 [2007], lv denied 10 NY3d 814 [2008]). Bothwaivers reflect defendant's understanding of the rights he was relinquishing and that he wasprovided ample time to discuss them with his attorney (see People v Collins, 53 AD3d 932, 933 [2008], lv denied11 NY3d 831 [2008]).
Given the valid waiver of appeal, defendant is precluded from challenging the factualsufficiency of his plea allocution (seePeople v Harris, 51 AD3d 1335, 1336 [2008], lv denied 11 NY3d 789 [2008]).While he is not precluded from challenging his resentence (see People v Rowland, 11 AD3d 825, 825-826 [2004]), we notethat defendant consented to being resentenced after refusing County Court's offer to withdrawhis plea (see People v Tausinger, 21AD3d 1181, 1183 [2005]).
To the extent that defendant's remaining contentions are properly before us, they have beenreviewed and are determined to be without merit.
Peters, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgments areaffirmed.
Footnote *: A seventh count was dismissed.