| People v Brady |
| 2014 NY Slip Op 07703 [122 AD3d 1009] |
| November 13, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vSteven M. Brady, Appellant. |
Paul J. Connolly, Delmar, for appellant.
James A. Murphy III, District Attorney, Ballston Spa (Ann C. Sullivan of counsel),for respondent.
Lynch, J. Appeal from a judgment of the County Court of Saratoga County (Scarano,J.), rendered May 10, 2013, convicting defendant upon his plea of guilty of the crime ofattempted criminal sale of a controlled substance in the third degree.
Defendant was charged in a three-count indictment with various drug-related crimesas the result of his sale of cocaine to an individual in the Town of Halfmoon, SaratogaCounty. Similar charges were also filed against defendant in Rensselaer County inconnection with other drug sales. In satisfaction of the indictment, defendant pleadedguilty to attempted criminal sale of a controlled substance in the third degree and waivedhis right to appeal. Under the terms of the plea agreement, defendant was to be sentencedas a second felony offender to four years in prison, to be followed by a period ofpostrelease supervision ranging from 1
Initially, contrary to defendant's claim, we find that defendant entered a valid waiverof the right to appeal. Although County Court ambiguously stated that the waiverforfeited defendant's right to appeal "either the plea or sentence," the written waiver,which defendant executed in open court, clarified that it encompassed the plea as well asthe sentence and [*2]defendant indicated that he haddiscussed it with counsel and understood the consequences of the waiver (see People v Fling, 112 AD3d1001, 1002 [2013], lv denied 23 NY3d 1020 [2014]). Moreover, CountyCourt properly advised defendant that his waiver of the right to appeal was separate anddistinct from the other rights that he was forfeiting by pleading guilty (see People v Lopez, 6 NY3d248, 256 [2006]; People vFate, 117 AD3d 1327, 1328 [2014]). Accordingly, under the circumstancespresented, we find that the waiver was knowing, voluntary and intelligent (see Peoplev Lopez, 6 NY3d at 256; People v Fligger, 117 AD3d 1343, 1344 [2014], lvdenied 23 NY3d 1061 [2014]).
Defendant maintains that County Court failed to comply with an important conditionof the plea agreement, which was that his sentence include a provision that he serve timein the Willard drug treatment program just as Rensselear County Court had directed aspart of the sentence it imposed. Based upon this, he argues that his guilty plea was notvoluntary. Although defendant's waiver of his right to appeal does not preclude him fromchallenging the voluntariness of his guilty plea, he has failed to preserve this claim forreview by making an appropriate postallocution motion or by objecting at the sentencing(see People v Tole, 119AD3d 982, 983 [2014]; People v Fate, 117 AD3d at 1328; People v Haynes, 14 AD3d789, 790-791 [2005], lv denied 4 NY3d 831 [2005]). In any event, there isno support in the record for defendant's assertion that the plea agreement implicitlyincluded a provision that, upon his incarceration, defendant would participate in theWillard drug treatment program. To the contrary, County Court specifically made it clearthat this was not a component of the sentence, a point expressly acknowledged bydefense counsel. Lastly, defendant's challenge to the severity of the sentence is precludedby his valid waiver of the right to appeal (see People v Fligger, 117 AD3d at1344; People v Fling, 112 AD3d at 1002).
Stein, J.P., Garry, Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.