| People v Neithardt |
| 2015 NY Slip Op 03577 [127 AD3d 1502] |
| April 30, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJessica Neithardt, Appellant. |
Barrett D. Mack, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston, for respondent.
Garry, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered March 21, 2013, convicting defendant upon her plea of guilty of the crimeof burglary in the second degree.
In satisfaction of a five-count indictment, defendant pleaded guilty to one count ofburglary in the second degree and waived her right to appeal. County Court agreed tosentence defendant to 10 years in prison to be followed by five years of postreleasesupervision and, additionally, to order restitution. In recognition of the fact thatdefendant was suffering from thyroid cancer, the court ultimately imposed a prisonsentence of eight years and otherwise abided by its sentencing promise. Defendant nowappeals.
We affirm. Contrary to defendant's contention, we find that she knowingly,intelligently and voluntarily waived her right to appeal from the conviction and sentence.County Court distinguished the right to appeal from those rights forfeited by her guiltyplea during the plea colloquy, after which defendant acknowledged her understanding ofthe ramifications of the waiver and executed a detailed written waiver in open court (see People v Smith, 123 AD3d1375, 1375-1376 [2014]; People v Fate, 117 AD3d 1327, 1328 [2014], lvdenied 24 NY3d 1083 [2014]).
Defendant's further challenge to the voluntariness of her guilty plea survives herappeal waiver but, as she acknowledges, is unpreserved given her failure to make anappropriate postallocution motion (see People v Easter, 122 AD3d 1073, 1073 [2014], lvdenied 24 NY3d [*2]1219 [2015]; People vFate, 117 AD3d at 1328). While "nothing in the plea colloquy 'casts significantdoubt upon . . . defendant's guilt or otherwise calls into question thevoluntariness of the plea' so as to implicate the narrow exception to the preservationrequirement," defendant argues that the exception is implicated due to a statement thatshe made at a later court appearance (People v Fate, 117 AD3d at 1328, quotingPeople v Lopez, 71 NY2d 662, 666 [1988]). Specifically, when defendant wasoffered an adjournment of sentencing due to pending cancer surgery, she expressed herunderstanding that her guilty plea would result in her transfer to the state prison systemand the provision of better medical care. County Court promptly made further inquiry, atwhich point defendant denied that her plea had been coerced and clarified that she had"taken responsibility for [her] actions" and simply wished to move on. Under thesecircumstances, the record establishes that the plea was knowing, intelligent and voluntary(see People v Rodriguez, 262 AD2d 242, 242 [1999], lv denied 93 NY2d1045 [1999]; People v Triscari, 219 AD2d 859, 859 [1995], lv denied 87NY2d 908 [1995]).
Lahtinen, J.P., McCarthy and Lynch, JJ., concur. Ordered that the judgment isaffirmed.