| People v Weir |
| 2017 NY Slip Op 07891 [155 AD3d 1190] |
| November 9, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Mark A. Weir, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Kristin A. Bluvas 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.), renderedFebruary 24, 2016, convicting defendant upon his plea of guilty of the crime of burglary in thesecond degree.
In October 2014, and in satisfaction of a superior court information charging him withburglary in the second degree as well as other then-pending charges, defendant pleaded guilty toburglary in the second degree and executed a waiver of appeal. The plea agreement requireddefendant to successfully complete inpatient treatment, after which defendant would be placed oninterim probation for a period of one year. If defendant successfully completed interim probation,the terms of the agreement provided that defendant's guilty plea to burglary in the second degreewould be withdrawn, at which time he would plead guilty to attempted burglary in the seconddegree with a sentence of probation. If defendant failed to comply with the terms of theagreement or interim probation, he could be sentenced to up to 15 years in prison (seePenal Law §§ 70.02 [1] [b]; [3] [b]; 140.25), with no sentencingrecommendation from the People or commitment from County Court. After completing theinpatient treatment, defendant violated the terms of his interim probation in numerous respects,and County Court ultimately sentenced defendant to a prison term of five years to be followed byfive years of postrelease supervision. Defendant now appeals.
We affirm. Contrary to defendant's contention, we find that his waiver of appeal wasknowing, voluntary and intelligent (seePeople v Lopez, 6 NY3d 248, 256 [2006]; People v Cuomo, 144 AD3d 1266, 1267 [2016]). The recordreflects that County Court adequately explained during the plea colloquy that the waiver of theright to appeal was separate and distinct from the rights forfeited by the guilty plea, anddefendant acknowledged that he understood the nature of his appellate rights that he was waiving(see People v Lopez, 6 NY3d at 256). In addition, defendant signed in open court awritten waiver of appeal in which he expressly waived the right to argue, among other things,that the sentence is harsh and excessive (see People v [*2]Lambert, 151 AD3d1119, 1119 [2017], lv denied 29 NY3d 1092 [2017]; People v Plass, 150 AD3d 1558,1559 [2017], lv denied 29 NY3d 1094 [2017]). Accordingly, the valid appeal waiverprecludes defendant's claim that the sentence is harsh and excessive (see People v Hess, 150 AD3d1560, 1560 [2017]; People vLavalley, 150 AD3d 1339, 1340 [2017]).
Peters, P.J., McCarthy, Rose, Devine and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.