People v Cuchelo

2017 NY Slip Op 07890 [155 AD3d 1189]

November 9, 2017

Appellate Division, Third Department

As corrected through Wednesday, January 3, 2018

[*1]

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

James R. McGinn, Delmar, for appellant.

D. Holley Carnright, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered July7, 2015, convicting defendant upon his plea of guilty of the crime of driving whileintoxicated.

After waiving indictment, defendant pleaded guilty to a superior court information charginghim with driving while intoxicated and executed a waiver of appeal. Although the Peoplepromised to recommend a prison sentence of 1 to 3 years as part of the plea agreement, CountyCourt informed defendant prior to his plea that, given defendant's criminal history, it would notfollow the People's sentencing recommendation and would instead sentence defendant to a prisonterm of 11/3 to 4 years, to which defendant consented. Consistent with theforegoing, County Court sentenced defendant to a prison term of 11/3 to 4 years.Defendant now appeals, claiming that the sentence is harsh and excessive.

We affirm. Defendant's sole contention on appeal is that the sentence is harsh and excessivein view of his long period of sobriety prior to the instant offense. However, defendant'sunchallenged waiver of appeal precludes this contention (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Cuomo, 144 AD3d 1266,1266 [2016]). The record reflects that County Court adequately explained during the pleacolloquy that the waiver of the right to appeal was separate and distinct from the rights forfeitedby the guilty plea, and defendant acknowledged that he understood the nature of the appealwaiver (see People v Lopez, 6 NY3d at 256). In addition, defendant signed a writtenwaiver of appeal in open court, after reviewing it with counsel and affirming his understandingthereof, in which he expressly waived the right to argue, among other things, that the sentence isharsh and excessive (see People vLambert, 151 AD3d 1119, 1119 [2017], lv denied 29 NY3d 1092 [2017]; People v Plass, 150 AD3d 1558,1559 [2017], lv denied 29 NY3d 1094 [2017]). Accordingly, as the court abided by itssentencing commitment, the valid appeal waiver precludes defendant's claim that the sentence isharsh and excessive (see People vHess, 150 AD3d 1560, 1560 [2017]; People v Lavalley, 150 AD3d 1339, 1340 [2017]).

[*2] Egan Jr., J.P., Lynch, Aarons, Rumsey and Pritzker, JJ.,concur. Ordered that the judgment is affirmed.