| People v Lester |
| 2016 NY Slip Op 05593 [141 AD3d 951] |
| July 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Daniel W. Lester, Appellant. |
Susan Betzjitomir, Bath, for appellant.
Mary E. Rain, District Attorney, Canton (Marquetta Christy of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered July 7, 2014, convicting defendant upon his plea of guilty of thecrime of vehicular manslaughter in the first degree.
Defendant waived indictment and agreed to be prosecuted pursuant to a superiorcourt information charging him with vehicular manslaughter in the first degree anddriving while ability impaired by drugs. Defendant thereafter pleaded guilty to vehicularmanslaughter in the first degree—in full satisfaction of both the superior courtinformation and other potential charges stemming from a December 2013 incidentwherein defendant, while operating a motor vehicle under the influence of various drugs,struck and killed a bicyclist. The underlying plea agreement included a waiver of theright to appeal, and County Court agreed to impose a prison term of 4 to 12 years and torelease defendant to probation supervision pending sentencing—subject to certainterms and conditions. Such terms and conditions included, insofar as is relevant here, thatdefendant refrain from taking any prescription medications that had not in fact beenprescribed for him, "abide by a curfew and be in [his] established residence between thehours of 9:00 p.m. and 6:00 a.m. daily" and submit to random drug testing. In this regard,defendant expressly advised County Court that he was only taking two prescribedmedications—Gabapentin and Hydrochlorothiazide. County Court, in turn,advised defendant that any additional prescription medications had to be approved by theProbation Department before such prescriptions could be filled. County Court alsowarned defendant that if he "br[oke] the rules" and violated any of the terms imposed bythe court or the Probation Department, the court would not be bound by the terms of theplea agreement and could sentence defendant to up to 15 years in prison.
[*2] Following a brief recess in the proceedings, defendantwas returned to court because he tested positive for Suboxone. Although defendant hadnot disclosed that he had a prescription for this particular medication during his priorcolloquy with County Court, defense counsel subsequently represented that defendantdid have a valid prescription for this drug but "unilaterally decided to stop taking it andflushed it" approximately two weeks earlier. Defendant confirmed counsel'sunderstanding, stating, "I just decided to quit taking it." Despite defendant's initial failureto disclose this medication and his subsequent failed drug test, County Court continueddefendant's release under supervision—reminding him of his obligation to testnegative for unauthorized drug use.
Approximately one month later, the Probation Department filed a uniform courtreport alleging that defendant violated the terms of his release by violating his curfewand twice testing positive for Suboxone. A bench warrant was issued and, after CountyCourt found that defendant had violated the terms and conditions of his release,defendant was remanded to the local jail pending sentencing. County Court thereafterimposed an enhanced sentence of 5 to 15 years in prison, prompting this appeal.
We affirm. Initially, we reject defendant's challenge to the validity of his waiver ofthe right to appeal. As the Court of Appeals recently reiterated, "a trial court need notengage in any particular litany when apprising a defendant pleading guilty of theindividual rights abandoned" (People v Sanders, 25 NY3d 337, 341 [2015] [internalquotation marks and citation omitted]). Rather, all that is required is "that defendant's fullappreciation of the consequences and understanding of the terms and conditions of theplea, including a waiver of the right to appeal, are apparent on the face of the record"(id. at 340 [internal quotation marks and citation omitted]). Here, as reflected inthe plea colloquy, County Court explained that defendant's right to appeal was separateand distinct from the other rights forfeited in connection with his plea (see People v Rushlow, 137AD3d 1482, 1483 [2016]; People v Creighton, 137 AD3d 1328, 1328-1329 [2016];compare People v Gonzalez,138 AD3d 1353, 1354 [2016]). Additionally, the record contains a signed, writtenwaiver of the right to appeal, a portion of which County Court read aloud to defendantduring the plea allocution, and defendant confirmed that he understood what rights hewas "giving up" and what rights he could not "give up" by executing the subject waiver(see People v Brown, 119AD3d 980, 981 [2014], lv denied 24 NY3d 959 [2014]; People v Carbone, 101 AD3d1232, 1233 [2012]). "While the better practice would have been for the court tospecifically ask defendant if he had discussed the appeal waiver with counsel andestablish that he had read the written waiver before signing it, considering all of therelevant facts and circumstances surrounding the waiver, including defendant'sexperience, we are satisfied that the oral colloquy, combined with the written waiver,demonstrate his understanding and voluntary waiver of his right to appeal" (People v Belile, 137 AD3d1460, 1461 [2016] [internal quotation marks, brackets and citations omitted]).
As for defendant's claim that his plea necessarily was involuntary given that he testedpositive for Suboxone shortly after his allocution, this issue is unpreserved for our reviewabsent an appropriate postallocution motion (see People v Guyette, 121 AD3d 1430, 1431 [2014], lvdenied 27 NY3d 998 [2016]). Moreover, "[d]efendant made no statements during theplea colloquy that would bring this matter within the narrow exception to thepreservation requirement" (People v Butler, 134 AD3d 1349, 1350 [2015] [internalquotation marks and citation omitted], lv denied 27 NY3d 963 [2016]). Finally,defendant expressly acknowledged that had not "taken any medications or drugs, legal orotherwise," within the 24 hours preceding his plea allocution, and nothing in the recordbefore us either casts doubt upon defendant's ability to understand the nature of theproceedings (see People vJenks, 69 AD3d 1120, 1121 [2010], lv denied 14 NY3d 841 [2010]) orsuggests a need for further inquiry by [*3]County Court(cf. People v Stover, 123AD3d 1232, 1233 [2014], lv denied 26 NY3d 936 [2015]).
With respect to the enhanced sentence imposed, although this issue has beensufficiently preserved for our review, we find it to be lacking in merit. A court may notimpose an enhanced sentence unless, as is relevant here, "it has informed the defendantof specific conditions that the defendant must abide by or risk such enhancement" (People v Tole, 119 AD3d982, 984 [2014], lv denied 19 NY3d 968 [2012]). As noted previously,defendant was expressly advised that he could not take any prescription medications thathad not been prescribed for him, that any additional prescriptionmedications—other than the two medications disclosed to County Court, whichdid not include Suboxone—had to be approved by the Probation Departmentbefore such prescriptions could be filled and that he had to "abide by a curfew and be in[his] established residence between the hours of 9:00 p.m. and 6:00 a.m. daily." Inresponse to the alleged violations, defendant did not dispute that he continued to takeSuboxone and, further, had spent the night at the home of a femalefriend—arguing instead that such conduct did not amount to a violation of theterms and conditions of his release. As defendant and counsel were afforded anopportunity to contest the alleged violations (see People v Albergotti, 17 NY3d 748, 750 [2011]) and therecord otherwise establishes that defendant did not comply with the terms and conditionsof his release, we cannot say that County Court abused its discretion in imposing anenhanced sentence (cf. People vWaite, 119 AD3d 1086, 1087-1088 [2014]). "Finally, defendant's challenge tohis enhanced sentence as harsh and excessive is precluded by his valid waiver of the rightto appeal inasmuch as County Court advised him of the consequences of violating theconditions of his plea" (People vPerkins, 125 AD3d 1045, 1047 [2015] [citation omitted]). Defendant'sremaining arguments, to the extent not specifically addressed, have been examined andfound to be lacking in merit.
Lahtinen, J.P., Lynch, Devine and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.