People v Revette

2013 NY Slip Op 00526 [102 AD3d 1065]

January 31, 2013

Appellate Division, Third Department

As corrected through Wednesday, February 27, 2013

The People of the State of New York, Respondent, v HollyA. Revette, Appellant.

—[*1]Lisa K. Miller, McGraw, for appellant.

Mark D. Suben, District Attorney, Cortland (Christine M.R. Ferraro of counsel), forrespondent.

Egan Jr., J. Appeal from a judgment of the County Court of Cortland County (Ames,J.), rendered September 25, 2009, convicting defendant upon her plea of guilty of thecrimes of arson in the third degree and burglary in the third degree.

Defendant previously was convicted of arson in the third degree (two counts) andburglary in the third degree (two counts) after she twice set fire to a residence beingconstructed by her former paramour. Upon appeal, this Court reversed and dismissed theindictment due to a defect in the grand jury proceedings (48 AD3d 886 [2008]).Defendant was reindicted for the same crimes and, in full satisfaction of that indictment,thereafter pleaded guilty to one count of arson in the third degree and one count ofburglary in the third degree and waived her right to appeal. County Court sentenceddefendant to the agreed-upon aggregate prison term of 22/3 to 8 years, anddefendant now appeals.

We affirm. The record reflects that defendant executed a written waiver of the rightto appeal, and County Court adequately explained the nature of the rights forfeitedthereby. Accordingly, defendant's challenge to the validity of such waiver—raisedfor the first time in her reply brief—is meritless (see People v Carbone,101 AD3d 1232, 1233 [2012]). Although defendant's challenge to the voluntariness ofher plea survives her appeal waiver, the record does not reflect that defendant moved towithdraw her plea or vacate the [*2]judgment ofconviction; hence, this issue is unpreserved for our review (see People v Empey, 73 AD3d1387, 1388 [2010], lv denied 15 NY3d 804 [2010]). The narrow exceptionto the preservation requirement is not implicated here, as nothing in the record castsdoubt upon defendant's guilt or otherwise calls into question the voluntariness of her plea(see People v Abrams, 75AD3d 927, 928 [2010]; People v Empey, 73 AD3d at 1388). In any event,defendant's present claim—that she pleaded guilty because she thought she wouldbe sentenced to a prison term of 11/3 to 7 years—is belied by therecord. During the plea colloquy, County Court twice recited that the plea included anaggregate sentence of 22/3 to 8 years in prison and, each time, defendantaffirmatively indicated that she understood the sentence being proposed. Finally,defendant's challenge to the severity of the agreed-upon sentence is foreclosed by hervalid waiver of appeal (seePeople v Scitz, 67 AD3d 1251, 1252 [2009]).

Mercure, J.P., Spain and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.