| People v Taylor |
| 2010 NY Slip Op 04068 [73 AD3d 1285] |
| May 13, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Jessie Taylor,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered March 17, 2008, convicting defendant upon his plea of guilty of the crime of assault inthe second degree.
Defendant was upset with his former girlfriend and stabbed her after encountering her on astreet in the City of Albany causing her to suffer a lacerated liver and other injuries. Defendantwas indicted for assault in the second degree and criminal mischief in the third degree. OnJanuary 28, 2008, defendant pleaded guilty to assault in the second degree. Pursuant to the termsof the plea agreement, defendant agreed to be sentenced as a mandatory persistent violent felonyoffender to a prison term of 12 years to life. As a part of his plea allocution, defendant admittedthat he had previously been convicted for robbery in the second degree and robbery in the firstdegree, in 1987 and 1991, respectively.
At sentencing, the People filed a special information charging that defendant was previouslyconvicted of the two robbery charges. Defendant again admitted his previous convictions atsentencing, yet requested an adjournment contending that New York's persistent sentencingguidelines were unconstitutional. County Court denied defendant's request for an adjournmentand sentenced defendant pursuant to the plea agreement, noting that defendant [*2]reserved his right to appeal "whether the mandatory persistentviolent felony offender statute is legally available to this court for sentencing purposes."Defendant appeals, contending that (1) he preserved his right to challenge the validity of hissentencing, (2) County Court erred in failing to adjourn the sentencing proceeding, (3) thePeople failed to provide sufficient foundation for the court's finding that defendant was apersistent violent felony offender, and (4) Penal Law § 70.08 violates the Equal ProtectionClauses of the State and Federal Constitutions.
"[T]he right to appeal may be waived as a condition of a sentence or plea bargain, providedthat the waiver was voluntarily made and no important public policies or societal interests areimplicated" (People v Callahan, 80 NY2d 273, 277 [1992]). "[A]n appeal waiver willencompass any issue that does not involve a right of constitutional dimension going to 'the veryheart of the process' " (People vLopez, 6 NY3d 248, 255 [2006], quoting People v Hansen, 95 NY2d 227, 230[2000]). As is relevant to this case, challenges to the legality of a sentence remain outside theambit of a valid appeal waiver and, thus, may be raised on appeal (see People vCallahan, 80 NY2d at 280-281).
Here, a review of the plea allocution reveals that County Court carefully explained the termsof this particular plea agreement. Among other things, the court informed defendant that byentering into the plea, he was admitting his guilt to both the 1987 and 1991 felony convictions,he was admitting to committing the crime of assault in the second degree and agreeing to aconviction as a mandatory persistent violent felony offender, and he was waiving his right toappeal as separate and apart from those rights automatically forfeited upon a plea of guilty(see People v Lopez, 6 NY3d at 256). The court further provided defendant with awritten waiver of appeal. Accordingly, we conclude that defendant knowingly, intelligently andvoluntarily waived his right to appeal.
While County Court noted at sentencing defendant's reservation of his right to appeal thelegality and constitutionality of the persistent violent felony offender statute, only a fraction ofdefendant's appeal addresses the legality of his sentence. Defendant's valid waiver of his right toappeal precludes him from challenging the procedure used in sentencing him as a persistentviolent felony offender (see People v Callahan, 80 NY2d at 281; People v Backus, 43 AD3d 409,410 [2007], lv denied 9 NY3d 959 [2007]). We disagree with the argument that CountyCourt's statement reserving defendant's appellate rights to challenge the legality andconstitutionality of New York's mandatory persistent violent felony offender statute wasambiguous, such that defendant should now be permitted to challenge the sufficiency of thePeople's predicate statement.
Finally, although defendant's contention that Penal Law § 70.08 (3) (c) violates theEqual Protection Clauses of the State and Federal Constitutions is not barred by his valid waiverof the right to appeal, his challenge in this regard is without merit (see People v Ward,260 AD2d 585, 586 [1999], lv denied 93 NY2d 1029 [1999]).[FN*][*3]
The remaining contentions set forth in defendant's pro sebrief are barred by his waiver of his right to appeal.
Mercure, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Because Penal Law §70.08 requires the sentencing court to make no factual finding other than the fact of two or morepredicate violent felony convictions, its constitutionality under the 6th and 14th Amendmentshas not been implicated by Besser v Walsh (601 F3d 163 [2d Cir 2010]).