| People v Musser |
| 2013 NY Slip Op 03707 [106 AD3d 1334] |
| May 23, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v PaigeL. Musser, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Spain, J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered June 1, 2011, convicting defendant upon her plea of guilty of the crime ofcriminal sale of a controlled substance in the fourth degree.
Pursuant to a negotiated plea agreement, defendant waived indictment and pleadedguilty to a superior court information charging her with criminal sale of a controlledsubstance in the fourth degree. The terms of the plea agreement further provided that ifdefendant successfully completed a six-month period of interim probation, she would bepermitted to withdraw her guilty plea and enter a plea of guilty to criminal sale of acontrolled substance in the fifth degree and be sentenced to five years of probation.However, if defendant failed to successfully complete the period of interim probation,she was advised that she would be subject to a prison sentence of up to 5½ yearsfollowed by two years of postrelease supervision. Defendant also waived her right toappeal as a part of the plea agreement. After defendant was found to be in violation ofthe terms of the plea agreement based upon her admitted failure to comply with the termsof her interim probation, County Court imposed a prison sentence of five years to befollowed by two years of postrelease supervision. Defendant now appeals.
Contrary to defendant's contention, we find that she made a valid waiver of the rightto appeal. County Court distinguished the right to appeal from the rights automaticallyforfeited [*2]upon defendant's guilty plea and defendantsigned a written appeal waiver in open court acknowledging that counsel discussed thewaiver with her and that she was waiving the right knowingly, voluntarily andintelligently (see People vMartinez-Velazquez, 89 AD3d 1318, 1319 [2011]; People v Wicks, 83 AD3d1223, 1224 [2011], lv denied 17 NY3d 810 [2011]). To the extent thatdefendant argues that her guilty plea was involuntary, the record contains no indicationthat defendant preserved this argument by a motion to withdraw her plea or vacate thejudgment of conviction and there is nothing in the record that would trigger the narrowexception to the preservation requirement (see People v Secore, 102 AD3d 1059, 1060 [2013];People v Wicks, 83 AD3d at 1224). Finally, in light of defendant's valid waiverof the right to appeal, her complaints regarding counsel's representation are precluded,except to the extent that they implicate the voluntariness of her plea and, to that extent,they are unpreserved and meritless (see People v Walker, 84 AD3d 1643, 1643-1644 [2011];People v Belle, 74 AD3d1477, 1480 [2010], lv denied 15 NY3d 918 [2010]). Her assertion that thesentence was harsh and excessive is foreclosed by her valid appeal waiver (see People v Lopez, 6 NY3d248, 256 [2006]).
Rose, J.P., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.