People v Conway

2007 NY Slip Op 08793 [45 AD3d 1055]

November 15, 2007

Appellate Division, Third Department

As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent, v Robert H.Conway, Jr., Appellant.

—[*1]Richard V. Manning, Parishville, for appellant.

Nicole M. Duve, District Attorney, Canton (Laurie M. Paro of counsel), forrespondent.

Cardona, P.J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered August 21, 2006, convicting defendant upon his plea of guilty of thecrime of driving while intoxicated.

Waiving his right to appeal, defendant pleaded guilty to one count of felony driving whileintoxicated in satisfaction of a three-count indictment. As part of the plea bargain, defendant wasplaced on interim probation for a period of one year with the requirement that he successfullycomplete a drug court program at an addiction treatment facility. At the time of the plea, CountyCourt informed defendant: "If you complete the program, when you are on Probation, I willsentence you to 6 months and 5 years Probation. If you don't, if you come back in the next yearfor anything, it is going to be [21/3 to 7]." Thereafter, defendant violated the termsof his interim probation and was sentenced to 21/3 to 7 years in prison, promptingthis appeal.

Initially, we find defendant's challenge to the validity of his appeal waiver to beunpersuasive. Not only did he adequately waive his right to appeal on the record, he alsoexecuted a written appeal waiver which set forth his appellate rights and indicated that he haddiscussed the waiver with his attorney and was relinquishing his right to appeal knowingly andintelligently (see People v Ramirez,42 AD3d 671, 671-672 [2007]). Additionally, to the extent [*2]that defendant challenges the voluntariness of his guilty plea, thatmatter is unpreserved for our review given his failure to move for withdrawal of the plea orvacatur of the judgment of conviction (see People v Underwood, 37 AD3d 907, 907 [2007], lvdenied 9 NY3d 852 [2007]). In any event, the plea minutes establish that defendant's guiltyplea was knowingly, intelligently and voluntarily entered (see id.). Finally, in light ofdefendant's valid appeal waiver, he is precluded from arguing that his sentence was harsh andexcessive (see People v Tedesco, 38AD3d 1102, 1103 [2007], lv denied 8 NY3d 991 [2007]).

Mercure, Crew III, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed.