| People v Wood |
| 2017 NY Slip Op 04166 [150 AD3d 1544] |
| May 25, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v MiltonWood, Appellant. |
Todd G. Monahan, Schenectady, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Rose, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered March 8,2014 in Albany County, convicting defendant upon his plea of guilty of the crime of criminal saleof a controlled substance in the third degree.
Defendant was charged in a 10-count indictment with various drug offenses stemming from,among other things, his alleged sale of cocaine on four occasions and the subsequent seizure bylaw enforcement of drug-related paraphernalia and proceeds, including $1,753.33 in UnitedStates currency and a Mercedes-Benz E320 automobile. Thereafter, pursuant to a negotiated pleaagreement, defendant pleaded guilty to attempted criminal sale of a controlled substance in thethird degree and executed a written waiver of appeal in open court. Consistent with the terms ofthe plea agreement, Supreme Court sentenced defendant as a second felony offender to a prisonterm of 12 years, to be followed by three years of postrelease supervision. Defendant nowappeals.
We affirm. Initially, defendant's contentions that Supreme Court should have had himevaluated for inclusion in the judicial diversion program (see CPL art 216) and that thesentence imposed was harsh and excessive are foreclosed by the unchallenged appeal waiver,which—in any event—the record reflects was knowing, voluntary and intelligent(see People v Smith, 112 AD3d1232, 1232 [2013], lv denied 22 NY3d 1203 [2014]; People v Roche, 106 AD3d 1328,1329 [2013]; People v Ivey, 79AD3d 1531, 1531 [2010], lv denied 16 NY3d 859 [2011]; see generally People v Lopez, 6 NY3d248, 255-256 [2006]). Similarly, to the extent that defendant claims that his counsel wasineffective for failing to advocate for his inclusion in a [*2]judicial diversion program, his valid appeal waiver precludes thisclaim as well (cf. People v Ivey, 79 AD3d at 1532).
To the extent that defendant contends that his counsel promised him that he would receive asentence of less than 12 years in prison, his claim implicates the voluntariness of his plea andsurvives his valid appeal waiver (see e.g.People v Dolberry, 147 AD3d 1149, 1150 [2017]). Our review of the record before us,however, does not establish or substantiate defendant's allegation. In addition, to the extent thatdefendant's claim is based upon off-the-record communications between defendant and counselregarding the sentence that he was going to receive, such a claim is not properly addressed in thisappeal (People v Fairweather, 147AD3d 1153, 1154 [2017]; People vLewis, 143 AD3d 1183, 1185 [2016]).
McCarthy, J.P., Devine, Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.