| People v Walker |
| 2018 NY Slip Op 08204 [166 AD3d 1393] |
| November 29, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael Walker, Also Known as Sam, Also Known as SK, AlsoKnown as Mike, Also Known as Shaq, Appellant. |
Martin J. McGuinness, Saratoga Springs, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), renderedFebruary 22, 2016 in Schenectady County, convicting defendant upon his plea of guiltyof the crimes of criminal sale of a controlled substance in the third degree and perjury inthe first degree.
Defendant was charged in an indictment with multiple crimes arising from his salesof heroin and false grand jury testimony. Following discovery and the commencement ofa jury trial, defendant decided to accept the People's plea offer. In satisfaction of theindictment,[FN*] hepleaded guilty to criminal sale of a controlled substance in the third degree and perjury inthe first degree and waived his right to appeal, both orally and in writing. Supreme Courtsentenced defendant as a second felony offender in accordance with the terms of the pleaagreement to prison terms of six years, followed by two years of postrelease supervision,on the drug conviction and to 2 to 4 years on the perjury conviction, which sentenceswere to run concurrently. Defendant appeals. We affirm.
We reject defendant's assertion that his appeal waiver was invalid. The recorddiscloses that Supreme Court advised defendant of the trial-related rights that he wouldbe forfeiting as a consequence of pleading guilty. After doing so, the court furtheradvised defendant that he had the right to have an appellate court review his convictionand sentence, but that an appeal waiver was a condition of the plea agreement. Defendantorally confirmed that he understood what he was giving up by waiving his right toappeal, and he signed a written waiver of appeal in open court after reading andreviewing it with his counsel. Even though the court did not specifically utilize the words"separate and distinct," "the court is not obliged to engage in any particular [*2]litany or catechism in satisfying itself that a defendant hasentered a knowing, intelligent and voluntary appeal waiver" (People v Griffin, 134 AD3d1228, 1228-1229 [2015] [internal quotations marks and citation omitted], lvdenied 27 NY3d 1132 [2016]; see People v Lopez, 6 NY3d 248, 256 [2006]; People v Franklin, 164 AD3d1547, 1548 [2018]). In view of the oral colloquy and the written waiver, we aresatisfied that the court sufficiently apprised defendant of his right to appeal withoutlumping it in with those trial-related rights being forfeited by his plea (see People v Hartfield, 151AD3d 1116, 1117 [2017], lv denied 29 NY3d 1127 [2017]; People v Pixley, 150 AD3d1555, 1557 [2017], lv denied 30 NY3d 952 [2017]). As such, we find thatdefendant's appeal waiver was valid (see People v King, 163 AD3d 1352, 1352 [2018]; People v Wood, 161 AD3d1447, 1448 [2018]; Peoplev Garrow, 147 AD3d 1160, 1161 [2017]). That said, defendant is precludedfrom arguing that the agreed-upon sentence was harsh and excessive (see People v Nieves, 163AD3d 1359, 1359 [2018], lv denied 32 NY3d 1006 [2018]; People v Venable, 161 AD3d1315, 1315 [2018], lv denied 31 NY3d 1154 [2018]).
Finally, although defendant's claim of ineffective assistance survives the appealwaiver to the extent that it impacts the voluntariness of his plea, it is unpreserved for ourreview in the absence of a postallocution motion (see People v Norton, 164 AD3d 1502, 1503 [2018]; People v Edwards, 160 AD3d1280, 1281 [2018], lv denied 31 NY3d 1147 [2018]). Nor does the narrowexception to the preservation requirement apply in this case (see People v Velez, 158 AD3d952, 953 [2018]; People vSmith, 155 AD3d 1244, 1245 [2017]).
Garry, P.J., Lynch, Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:The first four counts ofthe indictment were dismissed before trial, leaving six counts remaining.