| People v Johnson |
| 2016 NY Slip Op 01872 [137 AD3d 1419] |
| March 17, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vFernando D. Johnson, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan ofcounsel), for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered March 17, 2014, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the third degree.
Defendant pleaded guilty to criminal possession of a controlled substance in the thirddegree pursuant to a plea agreement that included a waiver of appeal. The plea satisfied atwo-count indictment, which stemmed from the execution of a search warrant anddiscovery of cocaine in defendant's possession. Defendant admitted his predicate felonyconviction and County Court, as agreed, imposed a prison sentence of six years withthree years of postrelease supervision. This appeal ensued.
As a threshold matter, we find that defendant's waiver of appeal was knowing,voluntary and intelligent (seePeople v Lopez, 6 NY3d 248, 256 [2006]; see also People v Sanders, 25 NY3d 337, 340-341 [2015];People v Jackson, 129AD3d 1342, 1342 [2015]). The record reflects that County Court adequatelyexplained the right to appeal and that it was separate and distinct from the other rightsautomatically forfeited by defendant's guilty plea, as well as the rights that were notforfeited by the appeal waiver (see People v Lopez, 6 NY3d at 256; People v Rubio, 133 AD3d1041, 1042 [2015]). Defendant also executed a detailed written waiver in open courtthat described the scope of the rights being waived and acknowledged that he hadsufficient time to discuss it with counsel, after County Court confirmed that heunderstood the written waiver of appeal and was freely and voluntarily signing it (see People v Ramos, 7 NY3d737, 738 [2006]; see alsoPeople v Bradshaw, 18 NY3d 257, 266-267 [2011]; People v Clapper,[*2]133 AD3d 1037, 1038 [2015]). Given defendant'svalid appeal waiver, his challenge to the sentence as harsh and excessive is foreclosed(see People v Lopez, 6 NY3d at 256; People v Clapper, 133 AD3d at1038).
Defendant further contends that County Court erred when it refused his request,made for the first time at sentencing, for a sentence of parole supervision that includeddrug treatment, pursuant to Penal Law § 70.70 (3) (d) (see CPL410.91). However, defendant received the sentence promised by the pleaagreement—a six-year prison sentence with postrelease supervision—andthat agreement did not include any promise by County Court to consider or recommenddrug treatment as an alternative, discretionary sentence (see People v Brady, 122 AD3d1009, 1010 [2014], lv denied 25 NY3d 1160 [2015]; People v Patterson, 119 AD3d1157, 1158 [2014], lv denied 24 NY3d 1046 [2014]). In any event, CountyCourt did not err in concluding that a drug treatment program would not be appropriateor warranted given defendant's criminal history.
McCarthy, J.P., Garry, Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.