| People v Robertson |
| 2007 NY Slip Op 09616 [46 AD3d 928] |
| December 6, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v PhillipRobertson, Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered July 20, 2005, convicting defendant upon his plea of guilty of the crime of assault in thesecond degree.
In September 2004, defendant became involved in a physical altercation with the victim,another SUNY Plattsburgh student, that resulted in defendant stabbing the victim. Defendant wastreated at a hospital for injuries he sustained during the incident and, at that time, was alsoquestioned by police and gave a statement about the occurrence. After he left the hospital,defendant was again questioned by police and, after being read his Miranda rights, gaveanother statement. Thereafter, in a multicount indictment, defendant was charged with, amongother things, reckless endangerment in the first degree, assault in the first degree, attemptedmurder in the second degree as a hate crime, assault in the first degree as a hate crime, criminalpossession of a weapon in the fourth degree and attempted murder in the second degree. Afterdefendant unsuccessfully challenged the admissibility of his statements to the police at aHuntley hearing, he pleaded guilty to assault in the second degree in satisfaction of theindictment and waived his appeal rights. Defendant was thereafter sentenced to five years inprison with five years of postrelease supervision, prompting this appeal.[*2]
Initially, defendant contends that County Court shouldhave granted his motion to suppress his statements to the police. Notably, any challenge to thecourt's ruling in that regard would be precluded by an enforceable waiver of the right to appeal(see People v Hunt, 29 AD3d1081, 1083 [2006], lv denied 7 NY3d 813 [2006]). Here, defendant expresslywaived his right to appeal during the colloquy and "executed a detailed written waiveracknowledging his right to appeal, relating that he had discussed his appellate options with hisattorney and stating that he was waiving his right to appeal voluntarily" (People v Fludd, 33 AD3d 1124,1125 [2006], lv denied 9 NY3d 843 [2007]; see People v Ramos, 7 NY3d 737, 738 [2006]). Accordingly, wefind that defendant knowingly, voluntarily and intelligently waived his right to appeal and,therefore, his challenge to the suppression ruling is foreclosed.
Finally, while a valid waiver of appeal precludes a defendant from challenging the severity ofhis or her sentence on appeal (seePeople v Lopez, 6 NY3d 248, 255 [2006]), it does not prevent a defendant fromappealing on the basis that the sentence is illegal (see id.; People v Callahan, 80NY2d 273, 280 [1992]). In that regard, the five-year period of postrelease supervision was notappropriate. Defendant pleaded guilty to second degree assault, which is a class D violent felony(see Penal Law § 70.02 [1] [c]) and, therefore, the maximum permissiblepostrelease supervision term is three years (see Penal Law § 70.45 [2] [e]).Consequently, we modify the judgment to the extent of imposing a reduced postrelease period ofsupervision of three years (see People vHarp, 20 AD3d 672, 674 [2005], lv denied 5 NY3d 852 [2005]).
Peters, Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is modified,on the law, by reversing so much thereof as imposed upon defendant a five-year period ofpostrelease supervision; sentence vacated to said extent and a three-year period of postreleasesupervision is imposed; and, as so modified, affirmed.