People v Wood

2018 NY Slip Op 03773 [161 AD3d 1447]

May 24, 2018

Appellate Division, Third Department

As corrected through Wednesday, June 27, 2018

[*1]

The People of the State of New York,Respondent, v Ronald Wood, Appellant.

Donna Maria Lasher, Youngsville, for appellant.

D. Holley Carnright, District Attorney, Kingston (Carly Wolfrom of counsel), forrespondent.

Clark, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered June 3, 2015, (1) convicting defendant upon his plea of guilty of the crime ofaggravated criminal contempt, and (2) which revoked defendant's probation and imposed asentence of imprisonment.

In October 2014, defendant waived indictment, agreed to be prosecuted by a superior courtinformation charging him with criminal contempt in the first degree, waived his right to appealand pleaded guilty to that charge, admitting that he punched the victim in the face in violation ofan order of protection. In exchange, County Court imposed a split sentence of six months in jailand five years of probation and issued a no-contact order of protection in favor of the victim.Two months later, defendant was charged by indictment with aggravated criminal contempt (twocounts) and sexual abuse in the third degree (two counts) related to the same victim. As a result,defendant was also charged with violating the conditions of his probation. Under the terms of aplea agreement resolving all charges in the indictment and the probation violation petition,defendant pleaded guilty to aggravated criminal contempt under count one of the indictment,waived his right to appeal and admitted that he violated certain enumerated conditions of hisprobation. At sentencing, County Court determined that defendant had violated the conditions ofthe plea agreement by failing to truthfully answer questions during his probation interview,which defendant conceded, thereby waiving a hearing on the matter. The court thereaftersentenced defendant on the violation of [*2]probation to anenhanced sentence of 11/3 to 4 years in prison,^[FN1] to be served consecutively to the agreed-uponsentence of 31/2 to 7 years on the indictment, as an admitted second felonyoffender. A no-contact order of protection was issued in favor of the victim. Defendantappeals.^[FN2]

Contrary to defendant's contentions, the record reflects that his combined oral and writtenwaiver of appeal entered in connection with his guilty plea to the indictment and admission to theviolation of probation is valid. County Court distinguished the waiver of appeal from thetrial-related rights automatically extinguished by the guilty plea, ensured that defendantunderstood the right to appeal, and ascertained that he had discussed the appeal waiver withcounsel and understood it prior to signing a written waiver. Under these circumstances, we findthat defendant's appeal waiver was knowing, voluntary and intelligent (see People v Sanders, 25 NY3d337, 339-341 [2015]; People vLopez, 6 NY3d 248, 256 [2006]; People v Smith, 157 AD3d 1059, 1059-1060 [2018], lvdenied 31 NY3d 987 [2018]). Given the valid appeal waiver, defendant's challenge to thesufficiency of the plea allocution related to the indictment is foreclosed (see People v Welden, 156 AD3d1241, 1241 [2017]; People vLove, 137 AD3d 1486, 1487 [2016]).

Defendant's general contention that his guilty plea was not knowing, voluntary and intelligentsurvives his valid appeal waiver, but was not preserved by an appropriate postallocution motion(see CPL 220.60 [3]; People vSumter, 157 AD3d 1125, 1126 [2018]). Moreover, the narrow exception to thepreservation rule is inapplicable, as defendant did not make any statements that were inconsistentwith his guilt or cast doubt on the voluntariness of his plea (see People v Williams, 27 NY3d 212, 220 [2016]; People vLopez, 71 NY2d 662, 666 [1988]).

Garry, P.J., Lynch, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.

Footnote 1:The plea agreement hadcontemplated a sentence of 1 to 3 years in prison on the probation violation, to be servedconsecutively to a prison term of 31/2 to 7 years on the aggravated criminalcontempt conviction.

Footnote 2:To the extent that defendantattempts to raise arguments with respect to the 2014 judgment of conviction, he did not file anotice of appeal therefrom and any attempt to do so in the notice of appeal with respect to theviolation of probation is untimely (see CPL 460.10 [1] [a]; People v Johnston, 140 AD3d1528, 1529 [2016], lv denied 28 NY3d 1028 [2016]).