| People v Handly |
| 2014 NY Slip Op 07701 [122 AD3d 1007] |
| November 13, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vKevin M. Handly, Appellant. |
Dean C. Schneller, Plattsburgh, for appellant.
Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Appeal from a judgment of the County Court of Franklin County (Main Jr., J.),rendered May 13, 2013, which revoked defendant's probation and imposed a sentence ofimprisonment.
In 2010, defendant was convicted upon his guilty plea of two counts of criminal saleof a controlled substance in the third degree in satisfaction of a four-count indictmentstemming from his sale of crack cocaine on two occasions. He was sentenced toconcurrent terms of five years of probation, the first 180 days to be served in jail. InMarch 2013, a violation of probation petition was filed alleging that he had violatedconditions of his probation. At the hearing, defendant admitted violating severalconditions of probation and agreed to waive his right to appeal in exchange for promisedconcurrent sentences of no more than six years, with postrelease supervision of betweenone and two years.[FN*] County Court thereafter revokeddefendant's probation and sentenced him to concurrent prison terms of five years, withtwo years of postrelease supervision. Defendant appeals.
[*2] We affirm. Defendant's challenge to his sentence asharsh and excessive is precluded by his valid appeal waiver, which he does not challengeas other than knowing, voluntary and intelligent (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d248, 256 [2006]; People vYoung, 112 AD3d 1068, 1068-1069 [2013], lv denied 22 NY3d 1204[2014]; People v Ryan, 38AD3d 1055, 1055-1056 [2007]). Defendant's only contention regarding the oralappeal waiver is that it is not valid because he did not also sign a written appeal waiver.This is incorrect, as an oral appeal waiver may, if adequate, suffice (see People vLopez, 6 NY3d at 257; People v Hidalgo, 91 NY2d 733 [1998]; People v Shurock, 83 AD3d1342, 1342-1343 [2011]; People v Smith, 81 AD3d 1034, 1035 [2011], lvdenied 16 NY3d 899 [2011]; People v Mattison, 74 AD3d 1495, 1495-1496 [2010],lv denied 15 NY3d 922 [2010]). The record reflects that, during the allocution tothe violation of probation, County Court explained the nature of the right to appeal,ascertained that defendant had discussed the appeal waiver with counsel and permittedcounsel a brief break to discuss it further; counsel represented that he had discussed itwith defendant and that he understood it, and defendant agreed to waive his right toappeal. Given the valid appeal waiver, and that the court abided by its sentencingpromise, defendant has relinquished the right to challenge that sentence as harsh andexcessive (see People v Lopez, 6 NY3d at 255-256).
Lahtinen, J.P., Stein, Egan Jr., Devine and Clark, JJ., concur. Ordered that thejudgment is affirmed.
Footnote *:Specifically, defendantadmitted having recently used marihuana, falsely representing during a urine drug screenthat he did not possess "clean" (or counterfeit) urine when he did possess same, and thathis self-employment did not constitute the verifiable full-time employment required bythe terms of his probation.