| People v Clements |
| 2010 NY Slip Op 05608 [74 AD3d 1636] |
| June 24, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v MichaelClements, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Schenectady County (Drago,J.), rendered March 4, 2008, convicting defendant upon his plea of guilty of the crime ofattempted criminal sale of a controlled substance in the third degree.
Defendant pleaded guilty to attempted criminal sale of a controlled substance in the thirddegree, a reduced charge under count one of a six-count indictment. He waived his right toappeal during the plea colloquy and was thereafter sentenced in accordance with the negotiatedplea agreement, as a second felony offender, to three years in prison followed by two years ofpostrelease supervision. Defendant appeals.
We affirm. Defendant argues that his waiver of the right to appeal was invalid. However,after County Court explained that the right to appeal was separate and distinct from those rightsbeing forfeited as a result of his guilty plea, defendant executed a written appeal waiver in opencourt that indicated that he had discussed the matter with his attorney, fully understood the rightshe was relinquishing and that he was "waiving [his] right to appeal voluntarily, knowingly,intelligently, and without coercion by anyone." Defendant also affirmed that he was willinglywaiving his right to appeal on the record and, in response to multiple inquiries from CountyCourt, stated that he had no questions regarding the issue. Under such [*2]circumstances, we find that defendant knowingly, intelligently andvoluntarily waived his right to appeal (see People v Dennis, 66 AD3d 1058, 1058 [2009]; People v Tabbott, 61 AD3d 1183,1184 [2009], lv denied 13 NY3d 750 [2009]; People v Stokely, 49 AD3d 966, 967-968 [2008]).
Finally, given his valid appeal waiver, defendant has forfeited his right to challenge thesentence as harsh and excessive (seePeople v Scitz, 67 AD3d 1251, 1252 [2009]).
Spain, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed.