| People v Yaw |
| 2014 NY Slip Op 06021 [120 AD3d 1447] |
| September 4, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vAndrew J. Yaw, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Joseph G. Fazzary, District Attorney, Watkins Glen (John C. Tunney of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Schuyler County (Morris,J.), rendered February 14, 2013, convicting defendant upon his plea of guilty of thecrimes of assault in the first degree and assault in the second degree.
During an argument on February 1, 2012, defendant struck his father in the headwith a metal tool causing life threatening injuries, and was thereafter indicted for, amongother crimes, attempted murder in the second degree. In satisfaction of those charges andany future charges related thereto, defendant accepted a plea agreement pursuant towhich he pleaded guilty to assault in the first degree and waived his right to appeal. Aspart of the same plea agreement, defendant simultaneously pleaded guilty to assault in thesecond degree under another two-count indictment stemming from assaults he committedwhile in jail on the murder charge. As relevant here, he was sentenced, as agreed, to a20-year prison term on the first degree assault conviction with five years of postreleasesupervision. He now appeals, challenging only the assault in the first degreeconviction.
Defendant argues that an appeal waiver concerning the sentence was not part of theplea agreement, that the waiver was not valid and did not encompass his right tochallenge the sentence as harsh and excessive, and that the oral and written waivers werecontradictory. Contrary to his contentions, the plea proceedings reflect that defendantwas repeatedly advised, [*2]without qualification, that anappeal waiver was part of the agreement, and defense counsel confirmed that hereviewed the plea terms with him, including the negotiated sentence and the appealwaiver; County Court explained the meaning of an appeal waiver and made clear that itwas not automatic but, rather, was separate and distinct from the other plea terms and thathe would be required to sign a written waiver at sentencing. Defendant indicated that heunderstood this right and freely agreed to "give up [his] right to appeal in exchange forthe plea and sentence promised to [him]." At sentencing, defense counsel stated that hehad "gone over the waiver of the right to appeal" with defendant, answered his questionsand that he understood it, which defendant confirmed. Defendant signed the writtenwaiver in open court, confirming that he had agreed to it and had discussed it with hisattorney. Thus, the record reflects that defendant was fully advised that the combined oraland written appeal waivers were part of the plea agreement and that they were agreed toknowingly, voluntarily and intelligently (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d248, 255-256 [2006]).
Further, there is no support in the record for the conclusion that the appeal waiverwas limited so as to permit an appeal of the sentence. Defendant explicitly waived hisappeal rights without qualification during the allocution, and his written appeal waiverclearly stated that it covered "all rights to appeal from the judgment of conviction. . . and the sentence imposed" (see People v Maracle, 19 NY3d 925, 926-928 [2012];People v Hidalgo, 91 NY2d 733, 735-737 [1998]; People v Fling, 112 AD3d1001, 1002 [2013], lv denied 23 NY3d 1020 [2014]). Likewise, while the written appeal waiver was more detailed, it did notcontradict the oral colloquy and, in any event, this claim is unpreserved as it was notraised at sentencing (see CPL 470.05 [2]). Defendant's valid waiver of the rightto appeal his conviction and sentence "precludes any claim that we should exercise ourinterest of justice jurisdiction and reduce the [agreed-upon] sentence" (People v Boone, 101 AD3d1358, 1359 [2012], lv denied 20 NY3d 1096 [2013]; see People v Foote, 102 AD3d1056, 1057 [2013], lv denied 20 NY3d 1098 [2013]).
McCarthy, J.P., Garry, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.