| People v Nichols |
| 2017 NY Slip Op 07888 [155 AD3d 1186] |
| November 9, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jamie L. Nichols, 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.), renderedAugust 13, 2015, (1) convicting defendant upon her plea of guilty of the crime of criminal sale ofa controlled substance in the third degree (two counts), and (2) which revoked defendant'sprobation and imposed a sentence of imprisonment.
While on probation for her conviction of criminal sale of a controlled substance in the fifthdegree, defendant was charged by indictment with two counts of criminal sale of a controlledsubstance in the third degree and two counts of criminal possession of a controlled substance inthe third degree. In exchange for the opportunity to participate in the judicial diversion program(hereinafter JDP), defendant pleaded guilty to two counts of criminal sale of a controlledsubstance in the third degree and to a violation of the terms of her probation and waived her rightto appeal. Pursuant to the agreement, if defendant successfully completed the JDP, her plea to thetwo counts of criminal sale of a controlled substance in the third degree would be vacated, shewould be permitted to plea to two counts of attempted criminal sale of a controlled substance inthe third degree and she would be resentenced to probation and continue probation in resolutionof the violation of probation. Defendant was also informed that, if she failed to successfullycomplete the JDP, she faced a potential maximum prison term of 26
[*2] We affirm. Defendant's valid appeal waiver forecloses ourreview of her claim that her sentence was harsh and excessive (see People v Lopez, 6 NY3d 248,256 [2006]; People v Forget, 136AD3d 1115, 1116 [2016], lv denied 28 NY3d 929 [2016]). Before acceptingdefendant's plea, County Court confirmed that defendant, as a part of her plea, wished tovoluntarily waive her right to appeal and further confirmed defendant's understanding of the factthat her waiver of her right to appeal was separate and distinct from those rights that sheautomatically forfeited upon her plea of guilty. Defendant further acknowledged that sheunderstood that she could not waive particular appellate rights, including any constitutionalchallenge based on her speedy trial right, the legality of the sentence, her own competency tostand trial and the voluntariness of her appeal waiver. Regardless of the fact that defendant neverconfirmed that she read and understood the written appeal waiver that she thereafter executed,this colloquy established that her waiver of the right to appeal was knowing, voluntary andintelligent (see People v Empey, 144AD3d 1201, 1203 [2016], lv denied 28 NY3d 1144 [2017]; People v Munger, 117 AD3d 1343,1343 [2014], lv denied 23 NY3d 1040 [2014]).
Garry, J.P., Egan Jr., Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.