| People v Fifield |
| 2017 NY Slip Op 03226 [149 AD3d 1420] |
| April 27, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Gregory R.Fifield, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), forappellant.
Mary E. Rain, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), renderedJune 29, 2015, (1) convicting defendant upon his plea of guilty of the crimes of aggravatedunlicensed operation of a motor vehicle in the first degree and driving while intoxicated, and (2)which revoked defendant's probation and imposed a sentence of imprisonment.
In June 2014, defendant was sentenced to two concurrent terms of five years of probation,resulting from a 2011 conviction for criminal contempt in the first degree and a 2012 convictionfor attempted burglary in the third degree, after he failed to successfully complete two one-yearterms of interim probation. In November 2014, defendant was charged with violating hisprobation. While the resolution of this charge was pending, defendant was also charged with fourcounts of aggravated unlicensed operation of a motor vehicle in the first degree and two counts ofdriving while intoxicated. Pursuant to a plea agreement, defendant pleaded guilty to one count ofunlicensed operation of a motor vehicle in the first degree and one count of driving whileintoxicated and admitted to violating the conditions of his probation. He waived the right toappeal and County Court thereafter vacated defendant's probation and imposed the agreed-uponaggregate prison sentence of 2 to 6 years. Defendant now appeals.
We affirm. Contrary to defendant's contention, his waiver of the right to appeal was [*2]valid.[FN*] County Court distinguished the right to appealfrom the rights automatically forfeited by a guilty plea and defendant affirmed his understandingof the waiver. Although defendant argues that his waiver did not encompass a challenge to theseverity of his sentence, the record reflects that he signed a written waiver in open court, afterreviewing it with counsel and affirming his understanding thereof, in which he expressly waivedthe right to argue that the sentence is harsh and excessive. Accordingly, defendant knowingly,intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v Sommers, 140 AD3d1537, 1538 [2016], lv denied 28 NY3d 974 [2016]; People v Butler, 134 AD3d 1349,1349-1350 [2015], lv denied 27 NY3d 963 [2016]), and his sole remaining claim, that hissentence is harsh and excessive, is precluded from our review (see People v Moulton, 134 AD3d1251, 1252 [2015]; People vKing, 20 AD3d 580, 581 [2005], lv denied 5 NY3d 829 [2005]).
McCarthy, J.P., Garry, Lynch, Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:To the extent that defendant alsochallenges the validity of appeal waivers from his convictions in 2011 and 2012, inasmuch asdefendant did not appeal from those convictions, "any issues regarding defendant's originalconviction[s] are not properly before us" (People v Daniels, 106 AD3d 1189, 1189 [2013], lv denied21 NY3d 1014 [2013]; see People vPozzi, 117 AD3d 1325, 1325 [2014]).