| People v Terrell |
| 2014 NY Slip Op 08928 [123 AD3d 1341] |
| December 24, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joan F. Terrell, Appellant. |
Cheryl L. Sovern, Clifton Park, for appellant.
Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Franklin County (Main Jr.,J.), rendered May 20, 2013, convicting defendant upon her plea of guilty of the crimes ofassault in the second degree and endangering the welfare of a vulnerable elderly personin the first degree.
Following an investigation into the stabbing of defendant's paramour who suffersfrom Alzheimer's disease, defendant was arrested for assault in the first degree. Pursuantto a plea agreement, defendant waived indictment and pleaded guilty to the reducedcharge of assault in the second degree and endangering the welfare of a vulnerableelderly person in the first degree as charged in a superior court information. In addition,the plea agreement required defendant to waive her right to appeal all but the sentenceimposed and any constitutional issues. Defendant was thereafter sentenced to concurrentprison terms of five years, followed by three years of postrelease supervision, for theassault conviction and 1
We are unpersuaded by defendant's contention that the appeal waiver is invalid.County Court fully explained the nature of the right to appeal and elicited from defendantthat she understood the right that she was relinquishing, which defense counselconfirmed upon conferring with defendant (see People v Smith, 121 AD3d 1131, 1131-1132 [2014]; People v Smith, 81 AD3d1034, 1035 [2011], lv denied 16 NY3d 899 [2011]). In our view, defendantknowingly, voluntarily and intelligently waived her right to appeal (see People v Lopez, 6 NY3d248, 256 [2006]; People vGarrand, 100 AD3d 1156, 1156-1157 [2012], lv denied 20 NY3d [*2]1011 [2013]).
Next, to the extent that defendant challenges the factual sufficiency of her guiltyplea, such claim is precluded by the appeal waiver (see People v Morey, 110 AD3d 1378, 1379 [2013], lvdenied 23 NY3d 965 [2014]; People v Durham, 110 AD3d 1145, 1145 [2013]), and isalso unpreserved for our review as the record does not indicate that she made theappropriate postallocution motion (see People v Watson, 115 AD3d 1016, 1016 [2014], lvdenied 24 NY3d 965 [2014]). Finally, regarding defendant's claim that the sentenceis harsh and excessive, County Court was aware of and considered all relevant factors inimposing sentence. Finding no abuse of discretion or any extraordinary circumstanceswarranting a reduction of the sentence in the interest of justice, the sentence imposed willnot be disturbed (see People vJarvis, 115 AD3d 1121, 1121 [2014], lv denied 23 NY3d 1038[2014]).
Peters, P.J., Garry, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.