People v Lavalley

2017 NY Slip Op 03575 [150 AD3d 1339]

May 4, 2017

Appellate Division, Third Department

As corrected through Wednesday, June 28, 2017

[*1]

The People of the State of New York, Respondent, v David J.Lavalley, Appellant.

Easton Thompson Kasperek Shiffrin LLP, Rochester (Brian Shiffrin of counsel), forappellant.

Mary E. Rain, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.

Devine, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered April 6, 2015, convicting defendant upon his plea of guilty of the crime of drivingwhile intoxicated.

In satisfaction of a two-count indictment, defendant pleaded guilty to driving whileintoxicated and waived his right to appeal. Under the terms of the plea agreement, defendant wasrequired to participate in the judicial diversion program with the understanding that, if he failedto successfully complete the program, he could be sentenced to up to four years in prison.Defendant was thereafter terminated from the program and County Court sentenced him to11/3 to 4 years in prison. Defendant now appeals and we affirm.

Defendant validly waived the right to appeal his conviction and sentence. County Courtexplained that the right to appeal was separate and distinct from the rights forfeited by a guiltyplea and defendant affirmed his understanding of the waiver. Contrary to defendant's contentionthat the appeal waiver was limited and allowed a challenge to the severity of his sentence, therecord reflects that he signed a detailed written waiver in open court stating that it included anychallenge to the severity of the sentence (see People v Yaw, 120 AD3d 1447, 1448 [2014], lv denied24 NY3d 1005 [2014]; People vFling, 112 AD3d 1001, 1002 [2013], lv denied 23 NY3d 1020 [2014]; cf. People v Maracle, 19 NY3d925, 927-928 [2012]). While it would have been better practice for County Court to haveconfirmed that defendant had discussed the waiver with counsel and had read the written waiverbefore signing it, the relevant facts and circumstances—including defendant's priorexperience with the criminal justice system, the oral colloquy and the detailed writtenwaiver—demonstrate that defendant knowingly, intelligently and voluntarily [*2]waived the right to appeal his conviction and sentence (see People v Sanders, 25 NY3d337, 341-342 [2015]; People vEmpey, 144 AD3d 1201, 1202-1203 [2016], lv denied 28 NY3d 1144 [2017]; People v Lester, 141 AD3d 951,952-953 [2016], lv denied 28 NY2d 1185 [2017]). Accordingly, the valid waiverprecludes his claim that his sentence is harsh and excessive (People v Lopez, 6 NY3d 248, 256 [2006]; People v Oddy, 144 AD3d 1322,1323 [2016]).

McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.