| People v Stewart |
| 2017 NY Slip Op 05004 [151 AD3d 1860] |
| June 16, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v EugeneStewart, Appellant. (Appeal No. 1.) |
Kathleen A. Kugler, Conflict Defender, Lockport (Edward P. Perlman of counsel), fordefendant-appellant.
Eugene Stewart, defendant-appellant pro se.
Caroline A. Wojtaszek, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Niagara County (Richard C. Kloch, Sr.,A.J.), rendered March 20, 2015. The judgment convicted defendant, upon his plea of guilty, ofburglary in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him, upon hisplea of guilty, of burglary in the third degree (Penal Law § 140.20) and, in appealNo. 2, he appeals from a judgment convicting him, upon his plea of guilty, of three counts ofburglary in the third degree (id.). In both appeals, defendant contends in his main briefthat the aggregate sentence imposed by Supreme Court is unduly harsh and severe. In elicitingdefendant's waiver of his right to appeal as an explicit condition of the plea agreement in eachmatter, the court advised defendant of the maximum sentences that could be imposed on eachconviction (see People v Lococo, 92 NY2d 825, 827 [1998]), and the record establishesthat defendant knowingly, intelligently, and voluntarily waived his right to appeal with respect toboth his convictions and sentences (seePeople v Lopez, 6 NY3d 248, 256 [2006]; cf. People v Maracle, 19 NY3d 925, 928 [2012]). We thusconclude that the valid waiver of the right to appeal encompasses defendant's challenge to theseverity of the sentences imposed (see Lopez, 6 NY3d at 255-256).
In appeal No. 2, defendant contends in his pro se supplemental brief that his waiver ofindictment and consent to be prosecuted under a superior court information (SCI) werejurisdictionally defective. We note that defendant's challenges to the jurisdictional requirementsof the waiver of indictment and the SCI need not be preserved for our review (see People vBoston, 75 NY2d 585, 589 n [1990]; People v Tun Aung, 117 AD3d 1492, 1493 [2014]) and are notprecluded by defendant's valid waiver of his right to appeal (see Tun Aung, 117 AD3d at1493; People v Lugg, 108 AD3d1074, 1074 [2013]). We nonetheless conclude that defendant's challenges lack merit (see People v Attea, 84 AD3d 1700,1701 [2011]; see generally CPL 195.10 [1] [b]; People v D'Amico, 76 NY2d 877,879 [1990]). Present—Centra, J.P., Lindley, DeJoseph, NeMoyer and Troutman, JJ.