| People v Tabbott |
| 2009 NY Slip Op 02861 [61 AD3d 1183] |
| April 16, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ian W.Tabbott, Appellant. |
—[*1] Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Greene County (Lalor, J.), renderedMarch 25, 2008, convicting defendant upon his plea of guilty of the crime of rape in the firstdegree.
Defendant pleaded guilty to one count of rape in the first degree in full satisfaction of afive-count indictment upon his admission that he had randomly selected a home, entered it in theearly morning hours and raped the victim at knife point in the bedroom where her two youngchildren were sleeping. Pursuant to the plea agreement, County Court sentenced him to 15 yearsin prison, but failed to impose the five-year period of postrelease supervision prescribed by PenalLaw former § 70.45 (2). Defendant eventually moved to vacate his conviction pursuant toCPL 440.10 on the ground that postrelease supervision had not been a part of either his plea orhis sentence. When the motion was to be argued, however, the prosecutor informed the court thatdefendant was withdrawing his motion and had agreed to again plead guilty and waive his rightto appeal with the understanding that he would receive the same sentence with the addition of afive-year period of postrelease supervision. Defendant's counsel stated that the repleading andresentencing with a waiver of the right to appeal were acceptable to defendant. Upon defendant'splea allocution and oral waiver, County Court accepted his plea and sentenced him to a 15-yearprison term and five years of postrelease supervision. Defendant appeals.[*2]
Considering defense counsel's statement on the record aswell as defendant's own responses to County Court's questions, we find that defendanteffectively abandoned his CPL 440.10 motion, expressly agreed to plead guilty pursuant to arevised plea agreement and was validly sentenced in accordance with that agreement to a 15-yearprison term and the minimum permissible period of postrelease supervision (see PenalLaw § 70.45 [2-a] [c]).
Our review of the plea colloquy also persuades us that, contrary to defendant's contention, heknowingly, voluntarily and intelligently waived his right to appeal as part of the plea bargain.County Court fully disclosed the separate and distinct right that was being waived and addressedit separately from those rights being forfeited by defendant's guilty plea (see People v Lopez, 6 NY3d 248,256-257 [2006]; People v Nason,31 AD3d 818, 819 [2006], lv denied 7 NY3d 869 [2006]). Defendant's remainingarguments, including his claims that his counsel was ineffective for failing to secure a morefavorable sentence and that the sentence imposed is harsh and excessive, are precluded by hisappeal waiver (see e.g. People vMorelli, 46 AD3d 1215, 1217 [2007], lv denied 10 NY3d 814 [2008]; People v Conway, 45 AD3d 1055,1056 [2007], lv denied 10 NY3d 763 [2008]).
Cardona, P.J., Kane, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed.