| People v Smith |
| 2016 NY Slip Op 01007 [136 AD3d 1107] |
| February 11, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vPaul S. Smith, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan ofcounsel), for appellant.
Mary E. Rain, District Attorney, Canton (A. Michael Gebo of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered October 10, 2013, convicting defendant upon his plea of guiltyof the crime of driving while ability impaired by drugs.
In satisfaction of various charges against him, defendant pleaded guilty in October2011 to the crime of driving while ability impaired by drugs (see Vehicle andTraffic Law § 1192 [4]). The plea agreement contemplated that defendantwould enter, upon acceptance, into the Judicial Diversion Program and that, if he failedto successfully complete the program, he would be sentenced to a prison term of2
Defendant contends that his plea was not knowing, intelligent and voluntary because,at the time of his plea, County Court failed to explain a direct consequence of hisplea—specifically, the "specified period" of time that he was required toparticipate in "alcohol or substance abuse treatment" as part of the judicial diversionprogram (CPL 216.05 [5]; seePeople v Monk, 21 NY3d 27, 32 [2013]; People v Harnett, 16 NY3d 200, 205-206 [2011]).However, inasmuch as the duration of his treatment regimen was not an "immediate,definite or automatic result" of his guilty plea but, rather, was fashioned by the judicialdiversion program outside of [*2]County Court's controlin response to defendant's particular treatment needs and his ongoing response to thattreatment, it was a collateral consequence of his plea subject to the preservationrequirement (People vDonovan, 94 AD3d 1230, 1231 [2012] [internal quotation marks and citationomitted]; see People vPeque, 22 NY3d 168, 184 [2013], cert denied 574 US &mdash, 135 S Ct90 [2014]; People v Monk, 21 NY3d at 32; cf. People v Colley, 121 AD3d 523, 524 [2014], lvdenied 25 NY3d 1161 [2015]; but cf. People v Louree, 8 NY3d 541, 545-546 [2007]).Here, defendant made no effort before County Court to call into question thevoluntariness of his plea or the Judicial Diversion Program contract and said nothingduring the plea colloquy that would bring this case within the narrow exception to thepreservation requirement (seePeople v Labaff, 127 AD3d 1471, 1471 [2015], lv denied 26 NY3d 931[2015]). Notably, defendant did not challenge the voluntariness of his plea until thisappeal and after having admitted to failing to comply with the terms of the judicialdiversion program (see People v Donovan, 94 AD3d at 1231). Thus, defendantfailed to preserve his claim for our review (see People v Peque, 22 NY3d at 182;People v Disotell, 123AD3d 1230, 1231-1232 [2014], lv denied 25 NY3d 1162 [2015]).
With regard to defendant's challenge to his sentence as excessive, County Courtproperly distinguished the waiver of the right to appeal from the rights that defendant hadautomatically forfeited by virtue of his guilty plea, ensured that defendant understood therights that he was waiving and had defendant execute a detailed written waiver in opencourt that indicated, among other things, that he had an opportunity to discuss the waiverwith counsel. Accordingly, we find that the appeal waiver was knowing, voluntary andintelligent (see People vLopez, 6 NY3d 248, 256 [2006]; People v Jackson, 128 AD3d 1279, 1280 [2015], lvdenied 26 NY3d 930 [2015]; People v Guyette, 121 AD3d 1430, 1430-1431 [2014]),and, given the valid waiver of appeal, defendant is precluded from challenging hisnegotiated sentence as harsh and excessive (see People v Lopez, 6 NY3d at256).
Garry, Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.