| People v Sawyer |
| 2016 NY Slip Op 00393 [135 AD3d 1164] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJon J. Sawyer, Appellant. |
John A. Cirando, Syracuse, for appellant.
Mary E. Rain, District Attorney, Canton (Ramy Louis of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered October 17, 2013, convicting defendant upon his plea of guiltyof the crimes of grand larceny in the fourth degree and criminal possession of a forgedinstrument in the second degree (six counts).
Defendant was charged by indictment with one count of grand larceny in the fourthdegree, six counts of criminal possession of a forged instrument in the second degree andone count of attempted bribing a witness. County Court dismissed the count of attemptedbribing a witness, and defendant pleaded guilty to the remaining seven counts. Duringthe plea allocution, defendant also orally waived his right to appeal and executed awritten appeal waiver. After defendant was allowed to complete a drug rehabilitationprogram pursuant to his plea agreement, County Court sentenced him, as a second felonyoffender, to an aggregate prison term of 4 to 8 years. He now appeals.
Defendant first argues that he did not knowingly waive his right to appeal. Ourreview of the record reveals, however, that County Court explained the meaning of theappeal waiver to defendant, noted that it is separate and distinct from the rights forfeitedby his guilty plea, and ascertained that he understood it and had no questions about it.Defendant also signed a written waiver of appeal with the assistance of counsel in opencourt. Accordingly, the record amply demonstrates that defendant's appeal waiver wasknowing, voluntary and intelligent (see People v Lopez, 6 NY3d 248, 256-257 [2006]; People v Jackson, 129 AD3d1342, 1342 [2015]; Peoplev Toback, 125 AD3d 1060, 1061 [2015], lv denied 25 NY3d 993[2015]). Nor can we agree with [*2]defendant's argumentthat this was a situation in which he agreed to plead guilty with " 'no [return]promise, plea agreement, reduced charge, or any other bargain or consideration' "from the People or the court (People v Crump, 107 AD3d 1046, 1047 [2013], lvdenied 21 NY3d 1014 [2013], quoting People v Nicelli, 74 AD3d 1235, 1236 [2010]; see People v Coles, 13 AD3d665, 666 [2004]). Rather, in exchange for his guilty plea, defendant was releasedprior to sentencing and allowed to seek inpatient drug rehabilitation treatment. The courtalso assured defendant that successful completion of such a program would be taken intoconsideration at sentencing. Ultimately, the court credited defendant with full completionof the program and sentenced him to an aggregate prison term of 4 to 8 years, far lessthan the maximum sentence that would have been legally permissible (see PenalLaw §§ 70.06 [3] [d], [e]; 155.30 [1]; 170.25).
While defendant's challenge to the voluntariness of his guilty plea survives his appealwaiver, it is unpreserved for our review as he failed to make a postallocution motion towithdraw his plea (see CPL 220.60 [3]; People v Richardson, 132 AD3d 1022, 1023 [2015]; People v Broomfield, 128AD3d 1271, 1271 [2015]). Nor does the narrow exception to the preservationrequirement apply here, as the record does not reflect that he "made [any] statementsduring the plea allocution that negated an element of the crime or otherwise called intodoubt his guilt or the voluntariness of his plea" (People v Richardson, 132 AD3dat 1023; see People v Lopez, 71 NY2d 662, 666 [1988]). Defendant's remainingarguments are precluded by his valid waiver of appeal.
Peters, P.J., Garry, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.