| People v Velazquez |
| 2015 NY Slip Op 01206 [125 AD3d 1063] |
| February 11, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRichard Velazquez, Appellant. |
John P.M. Wappett, Public Defender, Lake George (Marcy I. Flores of counsel), forappellant.
Kathleen B. Hogan, District Attorney, Lake George (Jason M. Carusone of counsel),for respondent.
Egan Jr., J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered April 25, 2012, convicting defendant upon his plea of guilty of the crimes ofassault in the second degree and strangulation in the second degree.
In satisfaction of a seven-count indictment, defendant entered an Alford pleato one count of assault in the second degree and one count of strangulation in the seconddegree and waived his right to appeal. In accordance with the plea agreement, defendantwas sentenced to an aggregate prison term of 10 years followed by five years ofpostrelease supervision. Defendant now appeals.
We affirm. Initially, we note that defendant's waiver of the right to appeal was validinasmuch as County Court "distinguished the right to appeal from the rightsautomatically forfeited upon a guilty plea and explained the consequences of defendant'splea," and defendant then reviewed and executed a detailed written waiver with counselin open court (People vChavis, 117 AD3d 1193, 1194 [2014]; see People v Koumjian, 101 AD3d 1175, 1175 [2012],lv denied 20 NY3d 1100 [2013]). That waiver precludes defendant's challenge tothe severity of his sentence (see People v Chavis, 117 AD3d at 1195; People vKoumjian, 101 AD3d at 1175). While not precluded by the waiver, defendant'sassertion that his plea was involuntary because medication administered at the local jailclouded his judgment is unpreserved for our review in the absence of a properpostallocution motion, and the narrow exception to the preservation [*2]requirement is inapplicable here (see People vChavis, 117 AD3d at 1194; compare People v Hennessey, 111 AD3d 1166, 1168-1169[2013]).
Although defendant's remaining challenges—that the imposition ofconsecutive sentences was illegal and that the uniform sentence and commitment formmust be amended—also survive his waiver (see People v Koumjian, 101AD3d at 1175; People vVasavada, 93 AD3d 893, 894 [2012], lv denied 19 NY3d 978 [2012]),we reject them as meritless. "[E]ven if the statutory elements of multiple offensesoverlap, sentences may be imposed to run consecutively when multiple offenses arecommitted through separate and distinct acts, though they are part of a single transaction"(People v Ramirez, 89 NY2d 444, 451 [1996]; see People v Moon, 119 AD3d1293, 1294-1295 [2014], lv denied 24 NY3d 1004 [2014]). The factsadduced during the plea colloquy revealed that the acts underlying the assault andstrangulation charges were separate and distinct; thus, consecutive sentences were proper(see People v Moon, 119 AD3d at 1295; People v Koumjian, 101 AD3dat 1175). Finally, inasmuch as there was substantial compliance with the requirements ofCPL 400.21 (see People vMorse, 111 AD3d 1161, 1161 [2013], lv denied 23 NY3d 1040 [2014]),and defendant does not challenge the terms of his sentence—which properlyreflected his status as a second felony offender—the uniform sentence andcommitment form need not be amended as a result of County Court's failure to expresslyreiterate that defendant was a second felony offender at sentencing (see generally People v Whalen,101 AD3d 1167, 1170 [2012], lv denied 20 NY3d 1105 [2013]; compare People v Feliciano,108 AD3d 880, 881 n 1 [2013], lv denied 22 NY3d 1040 [2013]).
McCarthy, J.P., Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.