| People v Bryant |
| 2015 NY Slip Op 04349 [128 AD3d 1223] |
| May 21, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vTravis Bryant, Appellant. |
Bruce Evans Knoll, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Lynch, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered July 10, 2013, convicting defendant upon his plea of guilty of the crime ofburglary in the first degree.
Defendant was charged in a six-count indictment with various offenses after hebroke into his paramour's residence and threatened to set it and its inhabitants ablaze. Infull satisfaction of the indictment, defendant pleaded guilty to one count of burglary inthe first degree and waived his right to appeal from the conviction and sentence. As partof the plea arrangement, County Court agreed to sentence defendant to 12 years in prisonto be followed by five years of postrelease supervision. The court ultimately imposed thatsentence, and defendant now appeals.
Defendant initially argues that his appeal waiver violated public policy, but it is wellsettled that "[w]aiving one's right to appeal as part of a plea agreement is not inherentlycoercive or against public policy" (People v Galietta, 75 AD3d 753, 754 [2010]; see Peoplev Seaberg, 74 NY2d 1, 8-10 [1989]; People v Morrison, 106 AD3d 1201, 1202 [2013], lvdenied 23 NY3d 1065 [2014]). While defendant complains that County Courtimproperly injected itself into the plea bargaining process by refusing to impose a lessersentence that the People found acceptable, his "argument[ ] overlook[s] the role of thetrial court and its obligation to insure the reasonableness of the bargain struck and of thesentence imposed" (People v Seaberg, 74 NY2d at 8; see People v Farrar,52 NY2d 302, 305 [1981]; People v Selikoff, 35 NY2d 227, 240-241 [1974],cert denied 419 US 1122 [1975]). Defendant's further contention that CountyCourt unilaterally imposed an appeal waiver to insulate the sentence from appellatereview is not borne [*2]out by the record. The court heldseveral conferences with defense counsel and the People prior to accepting the plea, anddefense counsel confirmed that the court accurately stated the terms of the pleaagreement. Defendant's appeal waiver was therefore not void as against public policyand, despite his further contentions, our review of the record confirms that it was made ina knowing, intelligent and voluntary manner (see People v Balbuena, 123 AD3d 1384, 1385 [2014];People v Morrison, 106 AD3d at 1202).
Defendant's challenge to the factual sufficiency of his plea is precluded by his appealwaiver and is additionally unpreserved due to his failure to raise it in an appropriatepostallocution motion (seePeople v Sibounhome, 125 AD3d 1059, 1060 [2015]; People v Durham, 110 AD3d1145, 1145 [2013]). Defendant asserts that the narrow exception to the preservationrequirement was implicated when he made statements during the plea colloquy thatnegated an element of burglary in the first degree but, even if true, County Court satisfiedits duty of making further inquiry and ensuring that defendant had committed the crimein question (see People v Lopez, 71 NY2d 662, 666-667 [1988]; People v Banks, 122 AD3d953, 953-954 [2014]).
Defendant's challenges to the procedures used to impose sentence do not call thelegality of the sentence itself into question and, as such, are barred by his appeal waiver(see People v Callahan, 80 NY2d 273, 281 [1992]; People v Dewiel, 100 AD3d1524, 1525 [2012], lv denied 20 NY3d 1010 [2013]). Likewise, his appealwaiver forecloses his final contention that the sentence imposed was harsh and excessive(see People v Lopez, 6NY3d 248, 255 [2006]; People v Morrison, 106 AD3d at 1202).
Lahtinen, J.P., McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed.