| People v Belile |
| 2016 NY Slip Op 02128 [137 AD3d 1460] |
| March 24, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJoseph J. Belile, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers ofcounsel), for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Lynch, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered September 2, 2014, convicting defendant upon his plea of guiltyof the crime of attempted assault in the second degree.
Following an altercation at the St. Lawrence County Correctional Facility on August13, 2013 between defendant, an inmate and another inmate, defendant was indicted forassault in the second degree. The victim died of unrelated causes prior to trial anddefendant's ensuing trial resulted in a hung jury. On the day scheduled for the retrial,defendant accepted a plea agreement that included a waiver of appeal, whereby hepleaded guilty to the reduced charge of attempted assault in the second degree. The pleaagreement also satisfied several unrelated pending or potential criminal charges forwhich defendant was in and out of jail throughout 2013, and required restitution for eachmatter. Defendant was thereafter sentenced, consistent with the plea agreement, to aprison term of 2 to 4 years, as an admitted second felony offender, restitution wasordered and orders of protection were issued. Defendant now appeals.
Initially, contrary to defendant's contentions, we find that his combined oral andwritten waiver of appeal was knowing, voluntary and intelligent (see People v Sanders, 25 NY3d337, 339-341 [2015]; People v Lopez, 6 NY3d 248, 256 [2006]; cf. People v Bradshaw, 18NY3d 257, 265 [2011]). The minutes of the plea proceedings reflect that when theterms of the plea agreement were outlined, County Court specified that an appeal waiverwas a condition of the deal, and defendant confirmed that he understood the terms andthereafter agreed, without [*2]qualification, that he wasvoluntarily waiving his right to appeal. The court ascertained that defendant understoodthat he was giving up his right to appeal, explained the appellate rights that could not bewaived and expressly advised him that the appeal waiver was separate and distinct fromthose rights that he automatically forfeited by his guilty plea (see People v Lopez,6 NY3d at 256; People vRubio, 133 AD3d 1041, 1042 [2015]). Defendant then executed a writtenwaiver of appeal in open court, which adequately described the scope of the appellaterights that he was waiving and included defendant's acknowledgment that he hadsufficient time to discuss the waiver with counsel. While the better practice would havebeen for the court to specifically ask defendant if he had discussed the appeal waiverwith counsel and establish that he had read the written waiver before signing it (see People v Elmer, 19 NY3d501, 510 [2012]; People v Callahan, 80 NY2d 273, 283 [1992]; People v Rabideau, 130 AD3d1094, 1095 [2015]), considering "all [of] the relevant facts and circumstancessurrounding the waiver," including defendant's experience (People v Sanders, 25NY3d at 340 [internal quotation marks and citation omitted]), we are satisfied that theoral colloquy, combined with the written waiver, demonstrate his understanding andvoluntary waiver of his right to appeal (see People v Bradshaw, 18 NY3d at266-267; People v Ramos, 7NY3d 737, 738 [2006]). Consequently, the valid appeal waiver precludesdefendant's challenge to the sentence as harsh and excessive (see People v Lopez,6 NY3d at 255-256; People vJackson, 129 AD3d 1342, 1342 [2015]).
Next, defendant argues that County Court incorrectly calculated the expiration dateof the permanent orders of protection by failing to factor in jail time credit (seePenal Law § 70.30 [3]). While this issue survives the appeal waiver (see People v Gardner, 129AD3d 1386, 1387 [2015]), it was not preserved for our review due to defendant'sfailure to raise it before the sentencing court (see People v Nieves, 2 NY3d 310, 316-317 [2004]; People v Hopper, 123 AD3d1234, 1235 [2014]). Defendant may directly address this issue before the trial court,and, under the circumstances presented, we decline to exercise our interest of justicejurisdiction to take corrective action. Defendant's remaining claims have been reviewedand determined to lack merit.
McCarthy, J.P., Garry, Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.