| People v Ohl |
| 2009 NY Slip Op 01885 [60 AD3d 1201] |
| March 19, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Stephen R.Ohl, Appellant. |
—[*1] Joseph A. McBride, District Attorney, Norwich (Michael J. Genute of counsel), forrespondent.
Appeal from a judgment of the County Court of Chenango County (Sullivan, J.), renderedDecember 10, 2007, convicting defendant upon his plea of guilty of the crimes of criminal sexualact in the first degree and robbery in the first degree.
A 10-count superior court information charged defendant with various theft and sex-relatedoffenses, as well as one weapons-related offense, stemming from his role in a nighttime homeinvasion during the course of which his companion was armed with a shotgun and the femaleoccupant of the home was physically and sexually assaulted. Defendant thereafter waivedindictment and pleaded guilty to criminal sexual act in the first degree and robbery in the firstdegree. The plea was in satisfaction of all counts with the understanding that County Courtwould sentence defendant to concurrent, determinate 18-year prison sentences and five years ofpostrelease supervision and that he would waive the right to appeal. Following defendant'sexecution of a written waiver of the right to appeal, he was sentenced in accordance with theplea. He now appeals claiming that the waiver of his right to appeal was invalid and that theagreed-upon sentence is harsh and excessive.
Defendant acknowledged at sentencing that he read the written waiver of the right to appealand voluntarily signed it. A handwritten notation placed on the form indicating that defendantwas "concerned with [his] future appeal rights" prompted a discussion concerning hisunderstanding of the waiver. At this time, defense counsel advised County Court that heinformed defendant "about what types of issues are affected by a waiver of appeal and whattypes [*2]of issues are not deemed to be covered by a waiver ofappeal." After additional discussions, it was agreed that the original notation would be crossedout and replaced with an acknowledgment by defendant that he "waive[d] all waivable rights."These circumstances satisfy us that defendant's waiver of the right to appeal was knowing,voluntary and intelligent (see People vLopez, 6 NY3d 248, 256 [2006]; People v Lewis, 48 AD3d 880, 881 [2008]). This being the case,defendant is foreclosed from challenging the severity of his sentence (see People v Getter, 52 AD3d1117 [2008]; People v Nickell,49 AD3d 1024, 1025 [2008]).
Mercure, J.P., Rose, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.