| People v Miner |
| 2014 NY Slip Op 06022 [120 AD3d 1449] |
| September 4, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vWilliam J. Miner, Appellant. |
Theresa M. Suozzi, Saratoga Springs, for appellant.
James A. Murphy III, District Attorney, Ballston Spa (Ann C. Sullivan of counsel),for respondent.
Clark, J. Appeal from a judgment of the County Court of Saratoga County (Scarano,J.), rendered April 2, 2013, convicting defendant upon his plea of guilty of the crime offailing to register under the Sex Offender Registration Act.
In January 2013, defendant, a registered sex offender, waived indictment and agreedto be prosecuted by a superior court information charging him with the reduced crime offailing to report an address change within 10 days as a first offense, under the SexOffender Registration Act (hereinafter SORA) (see Correction Law§§ 168-f [4]; 168-t). Pursuant to the plea agreement, which includedan appeal waiver, defendant pleaded guilty as charged and, after his pro se oral motion towithdraw his guilty plea was denied, he was sentenced, as agreed, to 1
Defendant's challenge to his guilty plea as involuntary survives an appeal waiver(see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Swindell, 72 AD3d1340, 1341 [2010], lv denied 15 NY3d 778 [2010]) and was preserved byhis motion to withdraw his plea (see People v Lopez, 71 NY2d 662, 665 [1988];People v Morey, 110 AD3d1378, 1379 [2013], lv denied 23 NY3d 965 [2014]). However, the recordreflects that his guilty plea was knowing, voluntary and [*2]intelligent (see People v Tyrell, 22 NY3d 359, 361, 365-366 [2013];People v Fiumefreddo, 82 NY2d 536, 543 [1993]; People v Shovah, 67 AD3d1257, 1258 [2009], lv denied 14 NY3d 773 [2010]; People v Kennedy, 46 AD3d1099, 1100 [2007], lv denied 10 NY3d 841 [2008]). During the pleaallocution, defendant was advised of and indicated that he understood his rights and theterms and consequences of the plea agreement and wished to enter a guilty plea. Hissentencing-related question was answered, and his claim of feeling pressured to acceptthe plea amounts to the type of "situational coercion" faced by many defendants, whichdoes not undermine the voluntariness of the validly entered guilty plea (People vSeaberg, 74 NY2d at 8; see People v Morey, 110 AD3d at 1379). Hiscontentions regarding what counsel advised him or investigated are outside the record onappeal and are more properly raised in a motion to vacate the judgment pursuant to CPLarticle 440 (see People vHaffiz, 19 NY3d 883, 885 [2012]; People v Moyer, 75 AD3d 1004, 1006-1007 [2010]).
Likewise, defendant indicated during the plea allocution that his attorney hadexplained the appeal waiver to him, which he understood, and acknowledged in opencourt that it was his signature on the written waiver of appeal, which had been signed outof court. County Court made clear that the appeal waiver was "separate and distinct fromthose rights automatically forfeited upon a plea of guilty" (People v Lopez, 6 NY3d248, 256 [2006]; see Peoplev Bradshaw, 18 NY3d 257, 264 [2011]). We find that the combined affirmationof the written appeal waiver and the oral colloquy related thereto sufficientlydemonstrated defendant's understanding of the appeal waiver, which was enteredknowingly, voluntarily and intelligently (see People v Lopez, 6 NY3d at 256;People v Callahan, 80 NY2d 273, 280 [1992]; People v Wolz, 112 AD3d1150, 1151-1152 [2013]; compare People v Elmer, 19 NY3d 501, 510 [2012]).Given the valid appeal waiver, defendant is precluded from challenging his negotiatedsentence as harsh and excessive (see People v Lopez, 6 NY3d at 256).Defendant's remaining claims, to the extent not expressly discussed, have been reviewedand determined to be without merit.
McCarthy, J.P., Garry, Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isaffirmed.