| People v Cipriani |
| 2009 NY Slip Op 03056 [61 AD3d 1214] |
| April 23, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Paul Cipriani,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Stephanie Hughes, Law Intern), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Schenectady County(Giardino, J.), rendered January 27, 2006, upon a verdict convicting defendant of the crimes ofburglary in the third degree, grand larceny in the fourth degree, criminal possession of stolenproperty in the fourth degree and criminal mischief in the fourth degree.
Defendant was charged in an indictment with burglary in the third degree, grand larceny inthe fourth degree, criminal possession of stolen property in the fourth degree, and criminalmischief in the fourth degree. The charges arose out of an incident in which lottery tickets andseveral cartons of cigarettes, among other things, were stolen from the Five Corners Coastal gasstation in the Town of Rotterdam, Schenectady County. The matter proceeded to a jury trial, atthe close of which defendant was convicted as charged.
Prior to sentencing, defendant agreed to plead guilty to an unrelated charge of burglary in thethird degree that was pending in the Town of Niskayuna, Schenectady County, and to waive hisright to appeal from the instant conviction in exchange for receiving concurrent sentences.County Court sentenced defendant, as a second felony offender, to an aggregate term of 3 to 6years in prison in connection with his conviction in this case. The court further explained thewaiver of the right to appeal to defendant, who then executed a written waiver in [*2]open court.[FN*]Defendant appeals, and we now affirm.
We reject defendant's arguments that his waiver of the right to appeal in the instant case wasnot knowing, intelligent and voluntary, and that the waiver was not appropriate under thecircumstances. A defendant may freely waive his or her right to appeal, even after a jury trial,and such waivers will be enforced if they are voluntary, knowing and intelligent (see Peoplev Holman, 89 NY2d 876, 878 [1996]; People v Seaberg, 74 NY2d 1, 10-11 [1989]).Moreover, "[t]here is nothing offensive, constitutionally, statutorily or as a matter of policy, inpermitting a defendant to waive [his or her] rights to appeal from judgments of more than oneconviction . . . in situations such as this, irrespective of whether [the negotiated]plea stems from charges closely connected to those of which defendant was found guilty aftertrial" (People v Holmes, 294 AD2d 871, 871-872 [2002], lv denied 98 NY2d 730[2002] [internal quotation marks and citations omitted]; accord People v Povoski, 55 AD3d 1221, 1221-1222 [2008]; see People v Lee, 50 AD3d 702,703 [2008], lv denied 10 NY3d 936 [2008]; People v Haupt, 16 AD3d 1079, 1079 [2005], lv denied 5NY3d 763 [2005]; People v Dickerson, 309 AD2d 966, 967 [2003], lv denied 1NY3d 596 [2004]; People v Turck, 305 AD2d 1072, 1072-1073 [2003], lvdenied 100 NY2d 566 [2003]; People v Boykin, 281 AD2d 708, 708-709 [2001];see also People v Calvin, 279 AD2d 812, 812-813 [2001], lv denied 96 NY2d860 [2001]; People v Korona, 197 AD2d 788, 789 [1993], lv denied 82 NY2d926 [1994]). We note that defendant's written waiver in this case—i.e., the waiver enteredat sentencing upon the jury verdict—expressly referenced a waiver following a guilty pleaconviction and not a waiver following a jury trial conviction (see People v Morton, 56 AD3d 1054, 1055 [2008]). In our view,however, the waiver of the right to appeal is nonetheless valid in light of County Court's detailedexplanation of the right to appeal, the nature of the appellate process and the issues that wereencompassed by the waiver, as well as the absence of any indication that the waiver wasdesigned to conceal error or prosecutorial overreaching (see People v Lopez, 6 NY3d 248, 257 [2006]; People vHolman, 89 NY2d at 878; People vVallance, 49 AD3d 917, 918 [2008], lv denied 10 NY3d 845 [2008]; Peoplev Boykin, 281 AD2d at 708-709).
Defendant's waiver precludes his remaining challenges, including his ineffective assistanceof counsel claim, inasmuch as that claim does not relate to whether counsel's alleged errorsimpacted the voluntariness of his plea (see People v Lopez, 6 NY3d at 255; People vVallance, 49 AD3d at 918; People v Dickerson, 309 AD2d at 967).
Rose, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: In a separate proceeding,defendant subsequently pleaded guilty to the unrelated burglary charge, executed another waiverof his right to appeal and was sentenced to a term of 2½ to 5 years in prison, which was torun concurrently with his sentence in this case.