| People v Hutchison |
| 2017 NY Slip Op 05279 [151 AD3d 1481] |
| June 29, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Angela J.Hutchison, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan 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.), renderedNovember 2, 2015, convicting defendant upon her plea of guilty of the crimes of criminal sale ofa controlled substance in the third degree and criminal possession of a controlled substance in thethird degree.
Defendant pleaded guilty to criminal sale of a controlled substance in the third degree andcriminal possession of a controlled substance in the third degree as charged in two separatesuperior court informations and waived the right to appeal. The plea agreement contemplatedthat, in lieu of sentencing, defendant would enter into the judicial diversion program and that, ifshe failed to complete the program, she could be sentenced to up to 24 years in prison and threeyears of postrelease supervision. Defendant later admitted to violating the conditions of thejudicial diversion program with the understanding that she would be sentenced to two concurrentprison terms of nine years. County Court instructed defendant, however, that she must follow allthe rules of county jail pending sentencing, and if she violated those rules, the court would not bebound by the agreement and that she could be sentenced to up to 24 years in prison. Prior tosentencing, defendant was found to have violated jail rules. At sentencing, County Courtinformed defendant that, based upon the rule violations, it was no longer bound to impose theagreed-upon concurrent sentences of nine years. County Court thereafter sentenced defendant, asa second felony drug offender, to two consecutive prison terms of nine years, to be followed bythree years of postrelease supervision. Defendant now appeals.
[*2] We affirm. We reject defendant's challenge to the validityof her appeal waiver. County Court explained that the right to appeal was separate and distinctfrom the rights forfeited by a guilty plea and informed defendant of the rights that survive thewaiver. Defendant confirmed her understanding of the waiver and that she was voluntarilywaiving the right to appeal (see People vLopez, 6 NY3d 248, 256 [2006]; People v Sommers, 140 AD3d 1537, 1538 [2016], lv denied28 NY3d 974 [2016]). Defendant also signed written waivers affirming that she had been givensufficient time to discuss the waiver of the right to appeal with counsel (see People v McKenzie, 136 AD3d1120, 1121 [2016], lv denied 27 NY3d 1002 [2016]). Accordingly, we are satisfiedthat defendant knowingly, intelligently and voluntarily waived the right to appeal her convictionsand sentence (see People v Sanders,25 NY3d 337, 340-341 [2015]; People v Lopez, 6 NY3d at 256; People v Beverly, 140 AD3d 1400,1400-1401 [2016], lv denied 28 NY3d 927 [2016]; People v Murdie, 134 AD3d 1353, 1354 [2015]). Contrary todefendant's contention, her valid appeal waiver precludes from our review her sole remainingcontention on appeal, that the imposed sentence is harsh and excessive, inasmuch as she wasinformed that a maximum sentence of 24 years in prison could be imposed if she violated theconditions of the plea agreement (seePeople v Garrow, 147 AD3d 1160, 1162 [2017]; People v Deprosperis, 132 AD3d 692, 693 [2015], lv denied26 NY3d 1108 [2016]; People vLyman, 119 AD3d 968, 970 [2014], lv denied 27 NY3d 1153 [2016]).
Egan Jr., J.P., Devine, Clark, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.