People v Gagnon

2017 NY Slip Op 06485 [153 AD3d 1451]

September 14, 2017

Appellate Division, Third Department

As corrected through Wednesday, November 1, 2017

[*1]

The People of the State of New York, Respondent, v William P.Gagnon, 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.), renderedDecember 10, 2015, convicting defendant upon his plea of guilty of the crime of unlawfulmanufacture of methamphetamine in the third degree.

Defendant waived indictment and agreed to be prosecuted pursuant to a superior courtinformation charging him with one count of unlawful manufacture of methamphetamine in thethird degree. In return for his acceptance into the judicial diversion program, defendant pleadedguilty as charged (in full satisfaction of both the superior court information and another pendingcharge) and waived his right to appeal—both orally and in writing. Consistent with theterms of the plea agreement and the judicial diversion contract executed by defendant, defendantwas advised that, if he failed to complete the program, he could be sentenced as a second felonyoffender to a maximum period of 41/2 years in prison followed by two years ofpostrelease supervision. Following defendant's two failed attempts at completing the program,the matter was set down for sentencing, and County Court thereafter sentenced defendant as asecond felony offender to a prison term of four years followed by two years of postreleasesupervision. Defendant now appeals.

We reject defendant's assertion that his waiver of the right to appeal was invalid. CountyCourt explained the rights that defendant was forfeiting by pleading guilty and distinguished theright to appeal from the trial-related rights that defendant was forgoing; defendant, in turn,communicated his understanding thereof and signed a detailed written waiver in open court (see People v Jakob, 147 AD3d1154, 1155 [2017]). "While the better practice [*2]wouldhave been for the court to specifically ask defendant if he had discussed the appeal waiver withcounsel and establish that he had read the written waiver before signing it, considering all of therelevant facts and circumstances surrounding the waiver, including defendant's experience, weare satisfied that the oral colloquy, combined with the written waiver, demonstrate hisunderstanding and voluntary waiver of his right to appeal" (People v Empey, 144 AD3d 1201, 1202-1203 [2016] [internalquotation marks and citation omitted], lv denied 28 NY3d 1144 [2017]; see People v Lavalley, 150 AD3d1339, 1340 [2017]). Accordingly, the valid waiver precludes defendant's present claim thatthe sentence imposed is harsh and excessive and should be reduced in the interest of justice (see People v McRae, 150 AD3d1328, 1328 [2017], lv denied 29 NY3d 1093 [2017]; People v White, 96 AD3d 1299,1300 [2012], lv denied 19 NY3d 1029 [2012]).

Egan Jr., J.P., Lynch, Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.