| People v Forget |
| 2016 NY Slip Op 01013 [136 AD3d 1115] |
| February 11, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAlain Forget, Appellant. |
Cynthia Feathers, Glens Falls, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Peters, P.J. Appeals (1) from a judgment of the County Court of Franklin County(Main Jr., J.), rendered June 2, 2014, convicting defendant upon his plea of guilty of thecrime of criminal sale of a firearm in the third degree, and (2) from a judgment of saidcourt, rendered January 12, 2015, which resentenced defendant.
In satisfaction of a six-count indictment, defendant pleaded guilty to criminal sale ofa firearm in the third degree. Pursuant to the plea agreement, County Court committed toimposing a prison sentence not to exceed seven years, to be served concurrently with thesentence imposed on a federal conviction for conspiracy to possess and distributemarihuana.[FN*]Consistent with that agreement, which included a waiver of appeal, the court sentenceddefendant to a prison term of seven years with five years of postrelease supervision. Theperiod of postrelease supervision was later reduced, upon resentencing, to three yearspursuant to Penal Law § 70.45 (2) (e). Defendant now appeals from thejudgments entered upon sentencing and resentencing.
Contrary to defendant's contention, the record of the plea allocution reflects that an[*2]appeal waiver was recited up front as a condition ofthe plea agreement and that defendant's waiver of appeal was knowing, voluntary andintelligent (see People vSanders, 25 NY3d 337, 341 [2015]; People v Lopez, 6 NY3d 248, 256 [2006]). County Courtexplained that defendant would ordinarily retain the right to appeal any decision of thetrial court, but that the plea agreement offered required that he give up that right withcertain exceptions, ascertained that defendant had discussed it with counsel andunderstood its meaning and did not impermissibly lump this right with the other appellaterights automatically forfeited by a guilty plea (see People v Lopez, 6 NY3d at256; People v Fishel, 128AD3d 15, 17 [2015]). As defendant's understanding and acceptance of the terms ofthe plea agreement, including the appeal waiver, are "apparent on the face of the record,"the waiver of appeal is enforceable (People v Callahan, 80 NY2d 273, 280[1992]; see People v Sanders, 25 NY3d at 340-341). Given defendant's validappeal waiver, he is foreclosed from challenging the sentence as harsh and excessive (see People v Pacherille, 25NY3d 1021, 1023-1024 [2015]; People v Lopez, 6 NY3d at 256; People v Garry, 133 AD3d1039, 1040 [2015]).
Garry, Egan Jr., Rose and Clark, JJ., concur. Ordered that the judgments areaffirmed.
Footnote *:Defendant's federalprison sentence of 70 months was later reduced by the United States District Court forthe Northern District of New York to 60 months.