People v Martin

2013 NY Slip Op 02785 [105 AD3d 1266]

April 25, 2013

Appellate Division, Third Department

As corrected through Wednesday, May 29, 2013

The People of the State of New York, Respondent, v DaleMartin, Appellant.

—[*1]Lisa A. Burgess, Indian Lake, for appellant.

Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.

Spain, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered December 19, 2011, convicting defendant upon his plea of guiltyof the crime of attempted assault in the second degree.

As part of an agreement resolving charges arising out of numerous incidents,defendant pleaded guilty to attempted assault in the second degree and waived his rightto appeal. County Court, in turn, agreed to sentence defendant to a prison term of11/3 to 4 years and to direct his enrollment in the shock incarcerationprogram if he successfully continued drug treatment.^[FN*] [*2]Defendant thereafter tested positive for anunprescribed medication and was discharged from the treatment program. County Courtnevertheless imposed the initially contemplated prison sentence, and defendant nowappeals.

We affirm. Defendant stated during the plea colloquy that he understood his right toappeal and wished to waive it, executed a detailed written waiver, then reiterated atsentencing that he understood that the right to appeal was separate and distinct from theother rights he was giving up (see People v Lopez, 6 NY3d 248, 256 [2006]).Accordingly, we conclude that he knowingly, intelligently and voluntarily waived hisright to appeal (see People vBradshaw, 18 NY3d 257, 264 [2011]; People v Lopez, 6 NY3d at 256;People v Lopez, 97 AD3d853, 853 [2012], lv denied 19 NY3d 1027 [2012]). Inasmuch as CountyCourt adhered to its sentencing commitment, defendant's valid appeal waiver precludeshis sole assertion that the sentence was harsh and excessive (see People v Lopez,6 NY3d at 255-256; People vKoumjian, 101 AD3d 1175, 1175 [2012], lv denied 20 NY3d 1100[2013]; People v Garrand,100 AD3d 1156, 1157 [2012], lv denied 20 NY3d 1011 [2013]).

Mercure, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.

Footnote *: We note that CountyCourt could recommend but not direct defendant's enrollment in shock incarcerationbecause he did not plead guilty to a drug offense (see Penal Law § 60.04[7]); the court's order in that regard constituted a nonbinding recommendation(see Correction Law § 71 [6]; Matter of Ferreri v Fischer, 69 AD3d 1014, 1014 [2010],lv denied 14 NY3d 707 [2010]). Defendant does not claim that this discrepancyrendered his guilty plea involuntary and, in any event, such an argument is not preservedfor our review given that the record does not reveal that he moved to withdraw his guiltyplea or to vacate the judgment of conviction (see People v Brown, 58 AD3d 540, 540 [2009], lvdenied 12 NY3d 814 [2009]).