| People v Murdie |
| 2015 NY Slip Op 09569 [134 AD3d 1353] |
| December 24, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJohn Murdie, Appellant. |
Susan Patnode, Rural Law Center of New York, Albany (Cynthia Feathers ofcounsel), for appellant.
Mary E. Rain, District Attorney, Canton (A. Michael Gebo of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered May 22, 2014, convicting defendant upon his plea of guilty ofthe crime of criminal sale of a controlled substance in the third degree (two counts).
In satisfaction of various charges against him, defendant pleaded guilty to anindictment charging him with criminal sale of a controlled substance in the third degree(two counts) and waived his right to appeal. The plea agreement contemplated thatdefendant would enter into the Judicial Diversion Program and that, if he failed tocomplete the program, he could face up to 24 years in prison. Defendant wassubsequently charged with violating the terms of the program and was terminated from itafter waiving his right to a hearing and admitting that he had violated those terms innumerous respects. Defendant did so upon the understanding that he would admit tobeing a second felony offender upon the basis of a prior burglary conviction in NewHampshire and that he would thereafter be sentenced to an aggregate prison term ofseven years to be followed by postrelease supervision of three years. County Courtimposed the agreed-upon sentence, and defendant now appeals.
We affirm. As an initial matter, the plea colloquy and written waiver of the right toappeal executed by defendant in open court establishes that he knowingly, intelligentlyand voluntarily waived his right to appeal (see People v Sanders, 25 NY3d 337, 340-341 [2015]; People v Lopez, 6 NY3d248, 256 [2006]; People vBeblowski, 131 AD3d 1303, 1304 [2015]). [*2]Defendant's contention that he was improperly adjudicatedas a second felony offender because his conviction for burglary in New Hampshire wasnot the equivalent of a felony in New York (see Penal Law § 70.06[1] [b] [i]) survives his appeal waiver because it implicates the legality of the sentence(see People v Martinez, 130AD3d 1087, 1088 [2015], lv denied 26 NY3d 1010 [2015]; People v Parker, 121 AD3d1190, 1190 [2014]). Nevertheless, such an argument must be preserved at the triallevel, where the "production and examination of foreign accusatory instruments and,conceivably, the resolution of evidentiary disputes, all in the context of comparisons withthe law of other jurisdictions," may occur (People v Samms, 95 NY2d 52, 57[2000]; see People v Jurgins, — NY3d &mdash, &mdash, 2015 NY SlipOp 09311, *3 [2015]; People v Smith, 73 NY2d 961, 962-963 [1989]; cf. People v Santiago, 22NY3d 900, 903-904 [2013]). Defendant failed to dispute the predicate felonystatement in any manner and, indeed, admitted before County Court that the NewHampshire conviction arose from facts that would have constituted the offense ofburglary in the second degree in New York. His argument is therefore unpreserved forour review and, given that he was sentenced as agreed when he admitted to violating theterms of the Judicial Diversion Program, we decline his invitation to take action in theinterest of justice (see People v Smith, 73 NY2d at 962-963; People v Morse, 111 AD3d1161, 1161 [2013], lv denied 23 NY3d 1040 [2014]; cf. People vParker, 121 AD3d at 1190-1191).
Defendant further argues that County Court improperly deferred to the decision ofthe treatment team to terminate him from the Judicial Diversion Program. To the extentthat this issue survives his appeal waiver, our review of the record confirms that "thetreatment team played an advisory role and it was the court that finally determined. . . to terminate defendant from the program" (People v Dawley, 96 AD3d1108, 1109 [2012], lv denied 19 NY3d 1025 [2012]; see CPL 216.05[9] [c]). The remaining arguments advanced by defendant, including that he received theineffective assistance of counsel, have been examined and rejected.
Lahtinen, J.P., and Egan Jr., J., concur.
Lynch, J. (dissenting). I respectfully dissent. The majority correctly notes thatdefendant's appeal waiver does not preclude his challenge to the legality of the sentenceand that he failed to preserve his claim that County Court erred in sentencing him as asecond felony offender. That said, I believe it appropriate here to take corrective actionin the interest of justice (seePeople v Parker, 121 AD3d 1190, 1190 [2014]; see also People vSamms, 95 NY2d 52, 57-58 [2000]). The burglary statute in New Hampshire, underwhich defendant was convicted, indisputably excludes the element of "knowingly"entering or remaining in a building (see NH Rev Stat § 635:1 [I],[II]; State v McMillan, 158 NH 753, 760, 973 A2d 287, 293 [2009]), and, thus, isnot the equivalent of, or analogous to, the felony burglary statutes in this state(see Penal Law §§ 140.20, 140.25 [2]). As such, defendant'sfelony burglary conviction in New Hampshire does not constitute a prior felony forpurposes of sentencing in New York (see Penal Law § 70.06 [1][b]; People v Muniz, 74 NY2d 464, 467-468 [1989]). This holds truenotwithstanding the fact that defendant admitted that the facts underlying his NewHampshire conviction would have constituted a burglary in New York (see Matter of North v Board ofExaminers of Sex Offenders of State of N.Y., 8 NY3d 745, 751 [2007];People v Parker, 121 AD3d at 1191). Since a direct comparison of the relevantNew Hampshire and New York statutory provisions confirms that defendant's sentencewas unauthorized, I would vacate the sentence and remit to County Court forre-sentencing.
Ordered that the judgment is affirmed.