| People v Crawford |
| 2020 NY Slip Op 01673 [181 AD3d 1057] |
| March 12, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Thomas J. Crawford, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), forappellant.
Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), forrespondent.
Appeals (1) from a judgment of the County Court of Cortland County (Campbell, J.),rendered January 18, 2018, convicting defendant upon his plea of guilty of the crime ofcriminal sale of a controlled substance in the third degree, and (2) by permission, from anorder of said court, entered June 11, 2018, which denied defendant's motion pursuant toCPL 440.10 to vacate the judgment of conviction, without a hearing.
In full satisfaction of two separate indictments (charging various drug-related crimes)and certain traffic violations, defendant agreed to plead guilty to one count of criminalsale of a controlled substance in the third degree in exchange for a prison term of twoyears followed by two years of postrelease supervision. The plea agreement also requireddefendant to waive his right to appeal. Defendant pleaded guilty in conformity with theplea agreement, and the matter was adjourned for sentencing. Following an unsuccessfulmotion to withdraw his plea, defendant was sentenced to the agreed-upon prison term.Defendant's subsequent motion to vacate the judgment of conviction pursuant to CPL440.10 was denied. Defendant appeals from the judgment of conviction and, bypermission, from the denial of his CPL article 440 motion.[FN*]
Defendant's challenge to the validity of the waiver of his right to appeal isunpersuasive. Although County Court's oral explanation of the appeal waiver did notinclude the words "separate and distinct," the court sufficiently explained the nature ofthe appeal waiver and did not "impermissibly lump" defendant's appellate rights into thetrial-related rights forfeited by virtue of defendant's guilty plea (People v Douglas, 168 AD3d1285, 1285 [2019] [internal quotation marks and citations omitted]; accord People v Miller, 155AD3d 1116, 1117 [2017]). Additionally, the written waiver executed by defendantin open court made clear that the waiver of the right to appeal was separate from thoserights automatically forfeited upon a plea of guilty (see People v Gamble, 177 AD3d 1042, 1042 [2019], lvdenied 34 NY3d 1128 [2020]; People v Boyette, 175 AD3d 751, 752 [2019], lvdenied 34 NY3d 979 [2019]), and defendant, in response to County Court'squestioning, assured the court that he understood the waiver, had no questions relativethereto and had been afforded sufficient time to confer with counsel (see People v Major, 176 AD3d1257, 1258 [2019], lv denied 34 NY3d 1017 [2019]; People v White, 172 AD3d1822, 1823 [2019], lv denied 33 NY3d 1110 [2019]). Under thesecircumstances, and as we discern no other infirmity in the waiver (compare People vThomas, 34 NY3d 545 [2019]; People v Barrales, 179 AD3d1313 [2020]), we are satisfied that defendant knowingly, intelligently andvoluntarily waived his right to appeal (see People v Boyette, 175 AD3d at 752;People v Walker, 166 AD3d1393, 1393-1394 [2018]). In light of the valid appeal waiver, defendant's challengeto the agreed-upon sentence as harsh and excessive is precluded (see People v Barragan, 178AD3d 1150, 1151 [2019]; People v Breithaupt, 171 AD3d 1311, 1312 [2019], lvdenied 34 NY3d 979 [2019]).
Mulvey, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.Ordered that the judgment and order are affirmed.
Footnote *:As noted in his appellatebrief, defendant "has opted not to seek this Court's review of the denial of his CPL[article] 440 motion"; hence, we deem any issue in this regard to be abandoned (see e.g. People v Setterlund,137 AD3d 1420, 1421 [2016]).