People v Jackson

2014 NY Slip Op 05568 [119 AD3d 1288]

July 31, 2014

Appellate Division, Third Department

As corrected through Wednesday, August 27, 2014

[*1]

1 The People of the State of New York, Respondent, vElia Jackson, Appellant.

James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.

Peters, P.J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered June 29, 2011, convicting defendant upon her plea of guilty of the crime ofattempted assault in the first degree.

In satisfaction of a three-count indictment, defendant entered into a negotiated pleaagreement pursuant to which she entered a guilty plea to a reduced count of attemptedassault in the first degree. The charges arose from defendant's admitted conduct inintentionally striking the victim with her car while driving, causing serious physicalinjuries. As part of the agreement, defendant waived her right to appeal the convictionand sentence and, in exchange, was promised a prison sentence of no more than nineyears but not less than 31/2 years, with three years of postreleasesupervision. County Court imposed a sentence of 81/2 years in prison, withthree years of postrelease supervision, restitution and other terms. Defendant nowappeals.

Initially, defendant argues that her appeal waiver and guilty plea were not knowing,voluntary and intelligent. A review of the plea colloquy establishes that defendant made avoluntary and knowing choice to waive her right to appeal (see People v Bradshaw, 18NY3d 257, 264 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]; People vCallahan, 80 NY2d 273, [*2]279-280[1992]).^[FN*]Whiledefendant's challenge to the voluntariness of her plea survives that appeal waiver (seePeople v Seaberg, 74 NY2d 1, 10 [1989]), the record on appeal does not reflect thatshe challenged her guilty plea on this ground in a motion to withdraw her plea and, assuch, this claim is unpreserved for appellate review (see People v Watson, 115 AD3d 1016, 1017 [2014]; People v White, 104 AD3d1056, 1056 [2013], lv denied 21 NY3d 1018 [2013]). In any event, we findthat the plea was knowing, voluntary and intelligent (see People v Tyrell, 22 NY3d 359, 365-366 [2013];People v Fiumefreddo, 82 NY2d 536, 543 [1993]).

Finally, given that County Court abided by its sentencing commitment, defendant'schallenge to the sentence as harsh and excessive is precluded by her valid andunqualified appeal waiver (see People v Lopez, 6 NY3d at 255-256; People v Martin, 105 AD3d1266, 1267 [2013]).

Lahtinen, Garry, Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.

Footnote *:The written waiver ofappeal, which the record reflects was signed and discussed in open court, is not includedin the record on appeal.