People v Miller

2017 NY Slip Op 07645 [155 AD3d 1116]

November 2, 2017

Appellate Division, Third Department

As corrected through Wednesday, January 3, 2018

[*1]

The People of the State of New York, Respondent, v MichelleMiller, Appellant.

Rebecca L. Fox, Plattsburgh, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Stitt of counsel), forrespondent.

Appeal from a judgment of the County Court of Franklin County (Main Jr., J.), renderedSeptember 29, 2014, convicting defendant upon her plea of guilty of the crime of rape in the thirddegree (two counts).

In September 2014, defendant waived indictment and consented to be prosecuted by asuperior court information (hereinafter SCI) charging her with two counts of rape in the thirddegree and two counts of criminal sexual act in the third degree. Pursuant to a plea agreement,defendant pleaded guilty to two counts of rape in the third degree in full satisfaction of theremaining charges in the SCI, as well as any uncharged crimes relating to the victims detailed inthe SCI, and waived her right to appeal. In exchange for defendant's guilty plea, the Peoplepromised to recommend a prison sentence of 11/2 years on each count, to runconsecutively, and County Court agreed to impose a prison sentence of no more than21/2 years on each count, to run consecutively, with a period of postreleasesupervision of no more than 10 years. Consistent with the foregoing terms of the plea agreement,County Court sentenced defendant to, among other things, consecutive prison terms of21/2 years to be followed by 10 years of postrelease supervision. Defendant nowappeals.

We affirm. The record of the plea allocution reflects that an appeal waiver was recited upfront as a condition of the plea agreement and that defendant's waiver of appeal was knowing,voluntary and intelligent (see People vSanders, 25 NY3d 337, 341 [2015]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Howe, 150 AD3d 1321,1322 [2017]). County Court explained to defendant that she would ordinarily retain the right toappeal any decision, order or ruling of the trial court that she believed to be incorrect orotherwise inappropriate, but that the plea agreement offered required that she give up that rightwith certain exceptions, ascertained that defendant had a sufficient opportunity to discuss thewaiver with counsel and understood its meaning and did not impermissibly lump this right withthe other appellate rights automatically forfeited by a guilty plea (see People v Lopez, 6NY3d at 256; People v Fishel, 128AD3d 15, 17 [2015]). "As defendant's understanding and acceptance of the terms of the pleaagreement, including the appeal waiver, are apparent on the face of the record, the waiver ofappeal is enforceable" (People vForget, 136 AD3d 1115, 1116 [2016] [internal quotation marks and citations omitted],lv denied 28 NY3d 929 [2016]; see People v Sanders, 25 NY3d at 340-341).Given defendant's valid appeal waiver, she is foreclosed from challenging the agreed-uponsentence as harsh and excessive (seePeople v Pacherille, 25 NY3d 1021, 1023-1024 [2015]; People v Lopez, 6 NY3dat 256; People v Garry, 133 AD3d1039, 1040 [2015]).

McCarthy, J.P., Garry, Clark, Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.