| People v Sibounhome |
| 2015 NY Slip Op 01203 [125 AD3d 1059] |
| February 11, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJohnny Sibounhome, Appellant. |
John A. Cirando, Syracuse, for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Lynch, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered June 10, 2013, convicting defendant upon his plea of guilty ofthe crime of criminal possession of marihuana in the third degree.
In satisfaction of an indictment charging him with criminal possession of marihuanain the second degree, defendant entered a guilty plea to the reduced charge of criminalpossession of marihuana in the third degree. The agreement included a promise tocooperate in the prosecution of his codefendant, an appeal waiver and a waiver of hisright to apply for conditional release. County Court imposed a sentence of 365 days injail. Defendant appeals, and we affirm.
Contrary to defendant's claim, he was advised, during the plea colloquy and in thewritten appeal waiver signed in court, that an appeal waiver was a condition of the pleaagreement. Further, the plea colloquy and the written waiver together establishdefendant's understanding of his appeal rights, which he had discussed with counsel, thatthe appeal waiver was separate and distinct from the other rights he automaticallyforfeited by his guilty plea, and that his waiver was knowing, voluntary and intelligent(see People v Bradshaw, 18NY3d 257, 264 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Yaw, 120 AD3d1447, 1448 [2014], lv denied 24 NY3d 1005 [2014]). Further, defendant'schallenge to the factual sufficiency of the plea allocution is precluded by his appealwaiver and was not preserved for our review by a postallocution motion to withdraw hisplea, and he did not say anything that would trigger the narrow exception to thepreservation requirement (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Rouse, 119 AD3d1161, 1162-1163 [2014]; People v Mydosh, 117 [*2]AD3d 1195, 1196 [2014], lv denied 24 NY3d 963[2014]).
Defendant claims that conditioning the plea agreement on his waiver of the right toapply for conditional release under Penal Law § 70.40 (2) was improper.This point was not raised in County Court and, thus, it is not preserved for our review(see CPL 470.05 [2]). His argument that it constitutes a "mode of proceedingserror" which can be raised for the first time on appeal is not supported by the statute orcase law (see People vHanley, 20 NY3d 601, 604-605 and n 2 [2013]; compare People v Wright, 119AD3d 972, 973-974 [2014]). We do not find that conditioning a guilty plea on thewaiver of the statutory right to apply for conditional release on parole falls within this"tightly circumscribed class" of fundamental errors for which preservation is not requiredand to which a defendant cannot consent as part of a plea agreement (People v Kelly, 5 NY3d116, 120 [2005]; see People v Hanley, 20 NY3d at 604; People v Becoats, 17 NY3d643, 651 [2011], cert denied 566 US &mdash, 132 S Ct 1970 [2012];People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]).This condition does not intrude upon the authority of the Board of Parole to decide aconditional release request, but speaks only to defendant's right to apply for such relief inthis first instance. Finally, given that defendant's valid appeal waiver "encompass[es] anyissue that does not involve a right of constitutional dimension going to the very heart ofthe process" (People v Lopez, 6 NY3d at 255 [internal quotation marks andcitation omitted]), this claim is precluded by his appeal waiver.
Garry, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.