| People v Jones |
| 2010 NY Slip Op 07620 [77 AD3d 1178] |
| October 28, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Qoya Jones,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered November 13, 2008, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a weapon in the second degree.
In full satisfaction of a four-count indictment, as well as several other unrelated pendingcharges, defendant pleaded guilty to criminal possession of a weapon in the second degree. Theplea bargain required defendant to waive his right to appeal and cooperate in the case against acodefendant, in exchange for which he would receive a sentence of not more than 10 years inprison and five years of postrelease supervision. County Court sentenced defendant to themaximum allowed under the plea agreement. Defendant appeals.
Initially, inasmuch as County Court adequately advised defendant that the right to appeal isseparate and distinct from the rights forfeited by his guilty plea, defendant's waiver of his right toappeal was valid (see People vLopez, 6 NY3d 248, 256 [2006]; People v Tabbott, 61 AD3d 1183, 1184 [2009], lv denied13 NY3d 750 [2009]). Although the appeal waiver does not preclude defendant's argument thathis plea was involuntary because it was induced by an unfulfilled promise, that argument isunpreserved due to his failure to move to withdraw his plea or vacate the judgment of conviction(see People v Oliver, 26 AD3d675, 676 [2006], lv denied 7 NY3d 760 [2006]). In any event, the court imposed asentence contemplated by the plea agreement, regardless of the People's assertion that defendantfailed to cooperate against his [*2]codefendant (see id.;People v Parsons, 3 AD3d 790,791 [2004]).
County Court did not err in denying defendant's request to redact one sentence from thepresentence investigation report (hereinafter PSI). A PSI must include information regarding,among other things, defendant's social circumstances, including any gang involvement(see 9 NYCRR 350.6 [b] [2] [i] [f]). The probation officer who authored defendant's PSIobserved that, although defendant denied gang involvement, his behavior suggested otherwise.Though this notation would not be admissible at a trial, it was permissible as it was based oninformation gathered during the investigation and was relevant to sentencing (see People v Thomas, 2 AD3d982, 984 [2003], lv denied 1 NY3d 602 [2004]; People v Whalen, 99 AD2d883, 884 [1984]; compare People vFreeman, 67 AD3d 1202, 1202-1203 [2009]).
Spain, J.P., Rose, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.