| People v Moulton |
| 2015 NY Slip Op 09141 [134 AD3d 1251] |
| December 10, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tyler J. Moulton, Appellant. |
Susan Patnode, Rural Law Center of New York, Albany (Cynthia Feathers ofcounsel), for appellant.
Mary E. Rain, District Attorney, Canton (A. Michael Gebo of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered September 30, 2013, (1) convicting defendant upon his plea ofguilty of the crime of sexual abuse in the first degree, and (2) which revoked defendant'sprobation and imposed a sentence of imprisonment.
In 2011, defendant pleaded guilty to sexual abuse in the first degree for subjecting anine-year-old girl to sexual abuse when he was 16 years old; the sentence imposedincluded a 10-year term of probation. In 2013, following new sexual abuse allegations, apetition was filed charging him with violating the terms of his probation by violatingstate laws, staying overnight in an unapproved residence and being with a child under theage of 17. Pursuant to a negotiated plea agreement that included a waiver of appeal,defendant waived indictment and pleaded guilty to a superior court information charginghim with sexual abuse in the first degree, admitting that he subjected a seven-year-oldgirl to sexual contact. As part of this agreement, defendant also admitted violating hisprobation as charged. His probation was revoked and he was sentenced in accordancewith the plea agreement, as a second child sexual assault felony offender (seeCPL 400.19 [2]), to an aggregate prison sentence of 10 years with 15 years of postrelease[*2]supervision.[FN*] Defendant appeals, and we affirm.
Initially, defendant's claim that his guilty plea was not knowing, voluntary andintelligent, which survives an appeal waiver, was not preserved by an appropriatepostallocution motion (seePeople v Johnson, 125 AD3d 1052, 1052 [2015], lv denied 25 NY3d1073 [2015]; People v Tole,119 AD3d 982, 983 [2014], lv denied 19 NY3d 968 [2012]). In any event,the record reflects that defendant was fully advised of the trial-related rights that he wasforgoing and the consequences of the plea, that he had consulted with his attorney andunderstood and accepted the plea terms, and that the plea represented a voluntary choiceamong available alternatives (see People v Gravino, 14 NY3d 546, 553-554 [2010];People v Fiumefreddo, 82 NY2d 536, 543 [1993]).
We find defendant's appeal waiver to be valid. The record reveals that County Courtadequately explained the consequences of the waiver of the right to appeal anddistinguished that right from the other rights he was giving up as a consequence of hisplea (see People vCampbell, 114 AD3d 996, 997 [2014]). Defendant also executed a detailedwritten waiver of the right to appeal and confirmed on the record that he understood thewaiver and was freely and voluntarily signing it (see People v Devault, 124 AD3d 1140, 1140 [2015], lvdenied 25 NY3d 989 [2015]; People v Clemons, 96 AD3d 1086, 1087 [2012], lvdenied 19 NY3d 1101 [2012]). As defendant's waiver of the right to appeal is valid,his contention that the sentence imposed was harsh and excessive is precluded (see People v Balbuena, 123AD3d 1384, 1386 [2014]; People v Jackson, 119 AD3d 1288, 1288 [2014], lvdenied 25 NY3d 1165 [2015]).
Peters, P.J., Lahtinen and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:County Court imposed aconcurrent prison sentence of seven years with three years of postrelease supervision onthe probation violation.