| People v Sofia |
| 2009 NY Slip Op 03961 [62 AD3d 1159] |
| May 21, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MichaelSofia, Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Hanna Stith Long of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered April 27, 2007, which resentenced defendant following his conviction of the crimes ofcriminal possession of a controlled substance in the first degree and conspiracy in the seconddegree.
In 2005, pursuant to a negotiated plea agreement, defendant pleaded guilty to the crimes ofcriminal possession of a controlled substance in the first degree and conspiracy in the seconddegree in full satisfaction of a pending multicount indictment. He also waived his right to appealin writing which he confirmed during the plea colloquy. County Court sentenced defendant toconcurrent prison terms of 15 years to life on the criminal possession count and 3 to 9 years onthe conspiracy count. The reduced sentencing provisions of the Drug Law Reform Act of 2004did not apply, as the crimes at issue were committed in 2004, before that Act became effective(see L 2004, ch 738, § 41 [d-1]; People v Utsey, 7 NY3d 398, 403-404 [2006]; People v Antoniou, 59 AD3d 805,806 [2009]). Under the terms of the plea agreement and appeal waiver, however, defendantreserved the right to apply for resentencing as provided for by that Act (see L 2004, ch738, § 23; see also Penal Law § 70.71). It was further agreed that, if he didso, a determinate prison term of no more than 10 and no less than eight years, as well aspostrelease supervision, would be imposed on the criminal possession count. Upon defendant'ssubsequent [*2]application for resentencing, County Courtimposed a prison term of 10 years and postrelease supervision of five years on the criminalpossession count. Defendant appeals and we affirm.
It is true, of course, that an appeal waiver executed in connection with a guilty plea does notpreclude a challenge to the severity of a subsequent resentence if the plea was entered "underconditions that changed following the waiver" (People v Tausinger, 21 AD3d 1181, 1183 [2005]; see People v Gray, 32 AD3d1052, 1053 [2006], lv denied 7 NY3d 902 [2006]). In this case, however, whendefendant entered into the plea agreement and executed the appeal waiver, while he did notknow the precise prison term that would be imposed upon resentencing, he was fully aware ofthe agreed-upon potential sentence range that could be imposed thereat. Indeed, the writtenappeal waiver itself discloses the agreed-upon sentencing range that defendant faced atresentencing. As defendant "knew the maximum exposure [he] could face upon pleading guilty,"his valid appeal waiver precludes his present challenge to his resentence as harsh and excessive(People v Lococo, 92 NY2d 825, 827 [1998]; see L 2004, ch 738, § 23; People v Lopez, 6 NY3d 248,255-256 [2006]).
Mercure, J.P., Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.