People v Brothers

2017 NY Slip Op 08054 [155 AD3d 1257]

November 16, 2017

Appellate Division, Third Department

As corrected through Wednesday, January 3, 2018

[*1]

The People of the State of New York,Respondent, v Kristopher G. Brothers, Appellant.

Susan Patnode, Rural Law Center of New York, Castleton (Cynthia Feathers of counsel), forappellant.

Mary E. Rain, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.

Devine, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered February 24, 2016, convicting defendant upon his plea of guilty of the crime ofattempted robbery in the third degree.

In satisfaction of several pending charges, defendant pleaded guilty to a superior courtinformation charging him with attempted robbery in the third degree and waived his right toappeal. The terms of the plea agreement included interim probation and, upon successfulcompletion of a substance abuse treatment program, defendant was to be allowed a reduction to amisdemeanor and a sentence of probation. Following various violations of the terms of the pleaagreement, defendant failed to engage in a substance abuse treatment program and ceasedcontacting probation, resulting in a warrant being issued for his arrest. County Court thereaftersentenced defendant to a prison term of 11/3 to 4 years. Defendant appeals.

We are unpersuaded by defendant's contention that the appeal waiver is invalid. CountyCourt ascertained that defendant understood the waiver and conveyed that the appeal waiver wasseparate and distinct from those rights automatically forfeited by his guilty plea. Defendantfurther read and confirmed that he understood the detailed written appeal waiver and had noquestions, then executed it in open court. In view of the foregoing, we are satisfied that defendantknowingly, voluntarily and intelligently waived his right to appeal (see People v [*2]Bateman, 151 AD3d 1482, 1483 [2017]; People v Hutchison, 151 AD3d1481, 1482 [2017]). Given the validity of the appeal waiver, defendant's challenge to thesentence as harsh and excessive is precluded (see People v Lopez, 6 NY3d 248, 256 [2006]; People vBateman, 151 AD3d at 1484; People v Simon, 140 AD3d 1533, 1534 [2016]).

McCarthy, J.P., Lynch, Clark and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.