| People v Upshur |
| 2017 NY Slip Op 04171 [150 AD3d 1552] |
| May 25, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v JamesUpshur, 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.
Garry, J.P. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered August 15, 2014, convicting defendant upon his plea of guilty of the crimes ofburglary in the third degree and assault in the second degree.
Defendant was charged in an indictment with burglary in the third degree and, whileincarcerated, he was charged with assault in the second degree. He waived indictment on theassault charge, agreed to be prosecuted by a superior court information and pleaded guilty,simultaneously, to both charges. The plea agreement contemplated that he would be sentenced toup to two years of interim probation and abide by substance abuse treatment recommendationsand, if successful, he would be sentenced to a period of probation. Defendant waived his right toappeal as part of the plea agreement. Defendant was thereafter charged with violating theconditions of his release on probation after he, among other things, tested positive for alcohol; hewas again released on probation supervision. Defendant later tested positive for cocaine, andCounty Court advised him that, due to his violation of the conditions of probation, it was nolonger bound by the sentence commitment.[FN*] The court thereafter sentenced defendant to[*2]prison terms of 1
Defendant's sole contention on appeal is that the sentence was harsh and excessive given hisemployment history, health problems and the interval of time since his last felony. However, thisclaim is precluded by his valid waiver of appeal (see People v Lopez, 6 NY3d 248, 256 [2006]). During the pleaallocution, County Court explained to defendant that a waiver of appeal was required as part ofthe plea agreement and distinguished the right to appeal as separate and distinct from the rightsthat were automatically forfeited by his guilty plea, and defendant agreed to this condition(see id.). Although "the better practice would have been to define the nature of the rightto appeal more fully" (People vSanders, 25 NY3d 337, 342 [2015]), defendant also signed written waivers of appeal inopen court which adequately described the scope of rights that he was waiving and specificallywaived any challenge to the sentence as harsh and excessive and acknowledged that he hadsufficient time to discuss the waivers with counsel (see People v Dolberry, 147 AD3d 1149, 1149 [2017]). The courtfurther ascertained that defendant, who was 48 years old and had extensive experience in thecriminal justice system, understood the waivers, establishing that they were knowing, voluntaryand intelligent (see People v Sanders, 25 NY3d at 340-341; People v Hall, 147 AD3d 1151,1151-1152 [2017]). Accordingly, this claim is foreclosed (see People v Miller, 137 AD3d 1485, 1485 [2016]; People v Blair, 136 AD3d 1105,1106 [2016], lv denied 27 NY3d 1066 [2016]).
Lynch, Rose, Mulvey and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Defendant declined CountyCourt's offer to vacate his guilty plea to the burglary, which the court offered based upondefendant's inconsistent statements to the Probation Department during the preparation of thepresentence report. The court refused to vacate his guilty plea to the assault charge, finding thatthere was no basis for such a motion and that defendant had admitted the assault in his probationinterview.