| People v Zeller |
| 2017 NY Slip Op 06112 [153 AD3d 1049] |
| August 10, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Bobbie JoZeller, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), forappellant.
Alexander Lesyk, Special Prosecutor, Norwood, for respondent.
Mulvey, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered August 5, 2015, convicting defendant upon her plea of guilty of the crimes of grandlarceny in the second degree and grand larceny in the third degree.
In satisfaction of a multicount indictment, defendant pleaded guilty to grand larceny in thesecond degree and grand larceny in the third degree and waived her right to appeal both orallyand in writing. Pursuant to the plea bargain, defendant agreed to withdraw her appeal from ajudgment of conviction rendered after a jury verdict under a separate indictment and waive herright to appeal from that judgment, and she executed a written withdrawal and a waiver withrespect thereto. Thereafter, County Court sentenced defendant, as a second felony offender, to anaggregate prison term of 5 to 10 years, to run consecutively to the sentence imposed under theseparate indictment. Defendant appeals, and we now affirm.
Contrary to defendant's contention, her waiver of the right to appeal from the instant guiltyplea convictions and sentence was knowing, voluntary and intelligent (see People v Sanders, 25 NY3d337, 340-341 [2015]; People vLopez, 6 NY3d 248, 256 [2006]). During the plea colloquy, County Court clearly statedthe terms of the plea agreement and ascertained that defendant understood the terms and agreedto waive her right to appeal as a condition of the plea bargain (see People v Belile, 137 AD3d1460, 1461 [2016]; People vHernandez, 114 AD3d 999, 999 [2014]). County Court expressly advised defendant thatthe waiver of her right to appeal was separate and distinct from those rights that sheautomatically forfeited by her guilty plea and explained the appellate rights that could not bewaived (see People v Rushlow, 137AD3d 1482, [*2]1483 [2016]; People v Belile, 137AD3d at 1461; People v McKenzie,136 AD3d 1120, 1121 [2016], lv denied 27 NY3d 1002 [2016]). Defendant alsoexecuted a written waiver in open court, which adequately described the scope of the appellaterights being waived and indicated that defendant had sufficient time to discuss the waiver withcounsel (see People v Belile, 137 AD3d at 1461; People v McKenzie, 136 AD3dat 1121). "While the better practice would have been for the court to specifically ask defendant if[she] had discussed the appeal waiver with counsel and establish that [she] had read the writtenwaiver before signing it, considering all of the relevant facts and circumstances surrounding thewaiver, including defendant's experience, we are satisfied that the oral colloquy, combined withthe written waiver, demonstrate [her] understanding and voluntary waiver of [her] right toappeal" (People v Lester, 141 AD3d951, 953 [2016] [internal quotation marks and citation omitted], lv denied 28 NY3d1185 [2017]; accord People vEmpey, 144 AD3d 1201, 1203 [2016], lv denied 28 NY3d 1144 [2017];People v Belile, 137 AD3d at 1461).
In addition, contrary to defendant's contention, County Court properly distinguished theappeal waiver from the rights that defendant was forgoing by waiving her right to appeal withrespect to her jury convictions rendered under the separate indictment, and the record does notindicate that defendant was confused in any manner as to those two waivers. Given defendant'svalid appeal waiver, she is precluded from challenging the sentence imposed as harsh andexcessive (see People v Ortiz, 148AD3d 1291, 1292 [2017]; People vDoggett, 146 AD3d 1172, 1173 [2017], lv denied 29 NY3d 1031 [2017];People v Belile, 137 AD3d at 1461).
McCarthy, J.P., Egan Jr., Lynch and Rose, JJ., concur. Ordered that the judgment isaffirmed.