| People v Butler |
| 2015 NY Slip Op 09565 [134 AD3d 1349] |
| December 24, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDejuan J. Butler, Also Known as David Barksdale,Appellant. |
John A. Cirando, Syracuse, for appellant.
Mary E. Rain, District Attorney, Canton (Abigail Hind of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered November 15, 2013, convicting defendant upon his plea of guiltyof the crime of criminal sale of a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal saleof a controlled substance in the third degree and waived his right to appeal. County Courtthereafter imposed the agreed-upon sentence of seven years in prison to be followed bythree years of postrelease supervision. Defendant now appeals.
We affirm. We reject defendant's contention that his waiver of the right to appealwas invalid. County Court distinguished the right to appeal from the rights automaticallyforfeited upon a guilty plea, and defendant acknowledged that he understood theramifications of the waiver and executed a written waiver in open court. Accordingly, weconclude that he knowingly, intelligently and voluntarily waived the right to appeal hisconviction and sentence (seePeople v Neithardt, 127 AD3d 1502, 1502 [2015]; People v Brown, 125 AD3d1049, 1049 [2015]). The valid appeal waiver precludes his claim that his sentence isharsh and excessive (see Peoplev Almeida, 127 AD3d 1499, 1500 [2015], lv denied 26 NY3d 1006[2015]; People v Turner,126 AD3d 1228, 1229 [2015]), as well as his challenge to County Court's denial ofhis application to redact certain information contained in the presentence investigationreport (see People vGuyette, 121 AD3d 1430, 1431 [2014]; People v Abdul, 112 AD3d 644, 645 [2013], lv [*2]denied 22 NY3d 1136 [2014]).
Defendant's claims that his guilty plea was not voluntary and that the plea allocutionwas not factually sufficient are not preserved for our review as the record does not reflectthat he made an appropriate postallocution motion (see People v Pickett, 128 AD3d 1275, 1276 [2015], lvdenied 26 NY3d 933 [2015]; People v Martin, 125 AD3d 1054, 1054 [2015], lvdenied 26 NY3d 932 [2015]). Defendant "made no statements during the pleacolloquy that would bring this matter within the narrow exception to the preservationrequirement" (People v Pickett, 128 AD3d at 1276).
Finally, we reject defendant's contention that he was illegally sentenced as a secondviolent felony offender, although he correctly notes that the People submitted a predicatefelony offender statement that erroneously indicated that he was subject to beingsentenced as a second violent felony offender (see Penal Law§ 70.04 [1] [a]). The sentencing minutes reflect that County Court properlysentenced defendant as a second felony drug offender previously convicted of a violentfelony (see Penal Law § 70.70 [4] [b] [i]; People v Feliciano, 108 AD3d880, 881 n [2013], lv denied 22 NY3d 1040 [2013]). While the judgment istherefore affirmed, we note that the uniform sentence and commitment form incorrectlyreflects that defendant was sentenced as a second felony offender and it must be amendedto reflect his status as a second felony drug offender with a prior violent felonyconviction (see People vLabaff, 127 AD3d 1471, 1472 [2015], lv denied 26 NY3d 931 [2015];People v Feliciano, 108 AD3d at 881 n).
Peters, P.J., Garry, Egan Jr. and Rose, JJ., concur. Ordered that the judgment isaffirmed, and matter remitted for entry of an amended uniform sentence and commitmentform.