| People v Gilbert |
| 2016 NY Slip Op 08260 [145 AD3d 1196] |
| December 8, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vIsiah Gilbert, Also Known as Pretty, Appellant. |
G. Scott Walling, Schenectady, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (McDonough, J.), renderedMarch 27, 2015 in Albany County, convicting defendant upon his plea of guilty of thecrime of attempted criminal sale of a controlled substance in the third degree.
Pursuant to a negotiated plea agreement, defendant pleaded guilty to attemptedcriminal sale of a controlled substance in the third degree and waived his right to appeal.The plea agreement included a commitment from Supreme Court that it would notimpose a sentence of more than five years in prison and three years of postreleasesupervision. However, when defendant failed to appear at sentencing and violated otherconditions of the plea agreement, the court imposed an enhanced sentence of6
Defendant first contends that his plea was not knowingly, voluntarily andintelligently entered because, at the time he accepted the plea bargain, he was unawarethat Supreme Court would require him to waive his right to appeal. Defendant'scontention is misplaced, however, as it does not impact the voluntariness of his plea but,instead, implicates only the validity of the appeal waiver itself. In this regard, the recordreflects that, "[a]lthough the appeal waiver was not mentioned when the terms of the pleaagreement were initially placed on the record," defendant was informed during the pleacolloquy, and prior to pleading guilty, that a waiver of the right to appeal was part of theplea bargain (People vJohnson, 106 AD3d 1331, 1332 [2013], lv denied 21 NY3d 1016[2013]). The record further reflects that Supreme Court sufficiently explained the distinctrights forfeited by the waiver, defendant conferred with his counsel concerning thewaiver, orally waived his right to appeal and executed a written waiver in open court (see People v Samuel, 143AD3d 1012, 1012 [2016]; compare People v Middleton, 72 AD3d 1336, 1337[2010]). In light of this, we find that defendant's appeal waiver is valid.
Defendant next contends that Supreme Court erred in imposing an enhancedsentence because the record does not reflect that he was advised of the conditions that, ifviolated, would subject him to an enhanced sentence.[FN*] While defendant's valid appeal waiverdoes not preclude defendant from raising this contention, it is, nonetheless, unpreservedfor our review (see People vRushlow, 137 AD3d 1482, 1483 [2016]; People v Tole, 119 AD3d 982, 984 [2014]). Were we toconsider it in any event, a review of the plea minutes establishes that Supreme Courtadequately set forth the conditions that would result in both the plea agreement being"broken" and an enhanced sentence. During sentencing, defendant expresslyacknowledged that, at the time of the plea, he was aware of threeconditions—specifically, that he would cooperate with law enforcement byassisting them with investigations, cooperate with the Probation Department and appearat the originally scheduled sentencing date—and that he did, in fact, violate thoseconditions. Accordingly, were this issue before us, we would find it to be without merit(see People v Thomas, 81AD3d 997, 997 [2011], lv denied 16 NY3d 900 [2011]; compare Peoplev Tole, 119 AD3d at 984). "Finally, defendant's challenge to his enhanced sentenceas harsh and excessive is precluded by his valid waiver of the right to appeal inasmuch as[Supreme] Court advised him of the consequences of violating the conditions of his plea"(People v Lester, 141 AD3d951, 954 [2016] [internal quotation marks and citations omitted]).
Defendant's remaining contentions are unpreserved for our review.
Egan Jr., J.P., Clark, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:We reject defendant'scontention that this argument also implicates the voluntariness of his plea.