| People v Brown |
| 2014 NY Slip Op 04979 [119 AD3d 980] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 The People of the State of New York, Respondent, vJohn Brown, Appellant. |
Cooper Erving & Savage, LLP, Albany (Phillip G. Steck of counsel), forappellant.
Trey Smith, Special Prosecutor, Troy, for appellant.
Peters, P.J. Appeal from a judgment of the Supreme Court (Pulver Jr., J.), renderedMarch 12, 2013 in Rensselaer County, convicting defendant upon his plea of guilty ofthe crime of criminal possession of a forged instrument in the second degree.
Defendant pleaded guilty to criminal possession of a forged instrument in the seconddegree and waived his right to appeal. In exchange, the People agreed to recommend asentence of six months in jail and five years of probation. Supreme Court adviseddefendant during the plea colloquy of the maximum term of imprisonment he couldreceive, but made no promises concerning sentencing.[FN*]Although the People, as well as theProbation Department, ultimately [*2]recommended amore lenient sentence, Supreme Court nonetheless sentenced defendant in accordancewith the plea agreement to six months in jail followed by five years of probation.Defendant now appeals, claiming that the sentence imposed was harsh andexcessive.
"By pleading guilty and waiving the right to appeal, a defendant has forgone reviewof the terms of the plea, including harshness or excessiveness of the sentence" (People v Lopez, 6 NY3d248, 256 [2006]; see Peoplev Morrison, 106 AD3d 1201, 1202 [2013]; People v Romano, 45 AD3d 910, 912 [2007], lvdenied 10 NY3d 770 [2008]). During the plea colloquy, Supreme Courtdistinguished the right to appeal from the rights automatically forfeited upon entry of aguilty plea, and defendant confirmed his understanding of the nature of that right and theconsequences of the waiver. Further, defendant signed a written waiver in open court thatacknowledged that he had discussed the waiver with counsel and that he was knowingly,voluntarily and intelligently waiving his right to appeal his conviction and sentence.Under these circumstances, we conclude that defendant validly waived his right to appeal(see People v Waldron, 115AD3d 1116, 1116-1117 [2014], lv denied 23 NY3d 969 [2014]; People v Newton, 113 AD3d1000, 1001 [2014]; Peoplev Marshall, 108 AD3d 884, 884 [2013], lv denied 22 NY3d 957 [2013]).Accordingly, he is precluded from challenging the sentence imposed as harsh andexcessive (see People v Lopez, 6 NY3d at 255-256; People v Munger, 117 AD3d1343, 1343 [2014]; People v Waldron, 115 AD3d at 1117).
Stein, Rose, Egan Jr. and Clark, JJ., concur. Ordered that the judgment is affirmed,and matter remitted to the Supreme Court for further proceedings pursuant to CPL460.50 (5).
Footnote *:Approximately twoweeks prior to the plea, defendant entered into a cooperation agreement with the Peoplewhereby he agreed to cooperate with the investigations and prosecutions of any casesarising out of the event that gave rise to his criminal charge. Notably, at no point duringthe plea proceeding was the cooperation agreement ever mentioned or referenced and,despite defendant's protestations to the contrary, nowhere in this record does it indicatethat Supreme Court promised or committed to consider the extent of defendant'scooperation in determining his sentence.