| People v Jackson |
| 2015 NY Slip Op 05232 [129 AD3d 1342] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMarcus Jackson, Appellant. |
John Ferrara, Monticello, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Garry, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered October 22, 2013, convicting defendant upon his plea of guilty of the crimeof rape in the third degree.
Defendant entered a guilty plea to rape in the third degree, admitting that he hadsexual intercourse with a 15-year-old girl when he was 22 years old. Pursuant to the pleaagreement, he waived his right to appeal and was sentenced to a two-year prison term tobe followed by 10 years of postrelease supervision. Defendant now appeals.
As an initial matter, the record reflects that defendant's appeal waiver was knowing,voluntary and intelligent (seePeople v Lopez, 6 NY3d 248, 256 [2006]; People v Callahan, 80 NY2d273, 280 [1992]). County Court carefully explained the nature of the right being waived,including that it was separate and distinct from the trial-related rights automaticallyforfeited upon a guilty plea, ascertained that defendant had discussed it with his attorneyand had no questions about it, and defendant signed a written waiver of appeal in opencourt (see People vBradshaw, 18 NY3d 257, 264-265 [2011]; People v Ramos, 7 NY3d 737, 738 [2006]; People v Toback, 125 AD3d1060, 1061 [2015], lv denied 25 NY3d 993 [2015]). The valid appeal waiverprecludes defendant's challenge to the sentence as harsh and excessive (see People vLopez, 6 NY3d at 255-256; People v Handly, 122 AD3d 1007, 1008[2014]).
[*2] Defendant's further claims that hewas not advised that there would be mandatory surcharges and that County Court shouldhave waived them were not raised before that court and, thus, are not preserved (see People v Young, 81 AD3d995, 996 [2011], lv denied 16 NY3d 901 [2011]). In any event, we wouldhave found no merit to these claims (see People v Hoti, 12 NY3d 742, 743 [2009]; People v Guerrero, 12 NY3d45, 47 [2009]). Defendant's challenge to the indictment as duplicitous was forfeitedby his guilty plea and appeal waiver, unless this constitutes a jurisdictional defect (seePeople v Iannone, 45 NY2d 589, 600-601 [1978]; People v Motz, 52 AD3d1029, 1030 [2008], lv denied 11 NY3d 791 [2008]). The claim of duplicity(see People v Alonzo, 16NY3d 267, 269 [2011]) does not constitute a jurisdictional defect (see People vVega, 268 AD2d 686, 687 [2000], lv denied 95 NY2d 839 [2000]) and, thus,this claim was forfeited (seePeople v Cole, 118 AD3d 1098, 1099-1100 [2014]).
Lahtinen, J.P., Egan Jr. and Rose, JJ., concur. Ordered that the judgment isaffirmed.