| People v Weatherbee |
| 2017 NY Slip Op 01100 [147 AD3d 1526] |
| February 10, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Jeremy A.Weatherbee, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), renderedJanuary 13, 2015. The judgment convicted defendant, upon his plea of guilty, of driving whileintoxicated, as a class E felony, and aggravated unlicensed operation of a motor vehicle in thethird degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of, interalia, felony driving while intoxicated (Vehicle and Traffic Law §§ 1192 [3];1193 [1] [c] [i] [A]), defendant contends that his waiver of the right to appeal is invalid and doesnot in any event encompass his challenge to the severity of the sentence. We conclude that" '[t]he written waiver of the right to appeal, together with defendant's responses duringthe plea proceeding, establish that the waiver was voluntarily, knowingly, and intelligentlyentered' " (People v Smith,122 AD3d 1420, 1420 [2014], lv denied 25 NY3d 1172 [2015]; see People v Ramos, 7 NY3d 737,738 [2006]). Contrary to defendant's contention, "[a]ny nonwaivable issues purportedlyencompassed by the waiver 'are excluded from the scope of the waiver [and] the remainder of thewaiver is valid and enforceable' " (People v Neal, 56 AD3d 1211, 1211 [2008], lv denied 12NY3d 761 [2009]). Nonetheless, even assuming, arguendo, that defendant's challenge to theseverity of his sentence is not encompassed by his valid waiver of the right to appeal (see e.g. People v Leiser, 124 AD3d1349, 1350 [2015]), we conclude that the sentence is not unduly harsh or severe.Present—Peradotto, J.P., Carni, Lindley, Curran and Scudder, JJ.