| People v Bailey |
| 2018 NY Slip Op 00360 [157 AD3d 1133] |
| January 18, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Wilbur C.Bailey Jr., Appellant. |
Mark Diamond, Albany, for appellant.
Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.
Pritzker, J. Appeals (1) from a judgment of the County Court of Franklin County (Main Jr.,J.), rendered April 13, 2015, which resentenced defendant upon his conviction of burglary in thethird degree, and (2) from a judgment of said court, rendered September 16, 2015, which revokeddefendant's probation and imposed a sentence of imprisonment.
In July 2013, defendant waived indictment and agreed to be prosecuted pursuant to a superiorcourt information charging him with burglary in the third degree and criminal possession of aweapon in the fourth degree. Defendant thereafter pleaded guilty to burglary in the third degree infull satisfaction of the charged crimes and waived his right to appeal in exchange for a splitsentence of six months in the local jail and five years of probation. Less than five months later,defendant was charged with violating the terms and conditions of his probation by, among otherthings, testing positive for opiates. Defendant subsequently admitted violating the terms andconditions of his probation and waived his right to appeal—with the understanding that hewould be restored to probation pending successful completion of an inpatient treatment program.After achieving a successful discharge from treatment, defendant was resentenced/restored toprobation in April 2015.
In August 2015, defendant again was charged with violating the terms and conditions of hisprobation—this time by testing positive for suboxone and failing to truthfully respond tothe Probation Department's inquiries relative thereto. A hearing was scheduled for September2015, at which time defendant agreed to admit to certain violations with the understanding thatCounty [*2]Court would revoke his probation and resentence himto no more than an indeterminate prison term of 2 to 6 years. Defendant also was required towaive his right to appeal (except as to constitutional issues and any violation of the court'ssentencing commitment). Following defendant's admissions, County Court revoked defendant'sprobation and resentenced him to a prison term of 2 to 6 years.[FN*] These appeals by defendant ensued.
Contrary to defendant's assertion, we find that his waiver of the right to appeal—asplaced on the record during the course of the September 2015 violation of probationproceeding—was knowing, intelligent and voluntary. County Court distinguisheddefendant's appellate rights from the other rights that defendant would be forfeiting by admittingthat he violated the terms and conditions of his probation and made clear that defendant was"giving up [his] right to appeal anything other than constitutional issues . . . or anyviolation by the [c]ourt of its sentencing commitment" (see People v Fifield, 149 AD3d 1420, 1421 [2017]; People v Graves, 113 AD3d 998,998-999 [2014], lv denied 23 NY3d 1037 [2014]). Defense counsel advised the court thathe had discussed the waiver with defendant, and defendant, in turn, confirmed his understandingand acceptance of the waiver (seePeople v Bartlett, 148 AD3d 1468, 1469 [2017]; People v Graves, 113 AD3d at998-999). Under these circumstances, we are satisfied that defendant's waiver of the right toappeal was valid (see People v Bartlett, 148 AD3d at 1469).
As for defendant's claim that the sentence imposed is harsh and excessive, inasmuch as thechallenged waiver of the right to appeal arose in the context of defendant's admission that heviolated the terms and conditions of his probation—as opposed to defendant's initial guiltyplea—we find that defendant's valid appeal waiver precludes his challenge to the severityof the sentence imposed following the revocation of his probation (compare People v Giuliano, 151 AD3d1958 [2017], lv denied 30 NY3d 949 [2017], People v Klemko, 150 AD3d 1487 [2017], and People v Williams, 140 AD3d1749 [2016], lv denied 28 NY3d 975 [2016], with People v Hare, 110 AD3d 1117 [2013], People v Ducheneaux, 97 AD3d852 [2012], and People vGertzberg, 94 AD3d 1293 [2012]). Defendant's attempt to circumvent the valid appealwaiver by asserting that the sentence imposed constitutes cruel and unusual punishment under theEighth Amendment is unavailing, and his remaining arguments have been considered and foundto be lacking in merit. Accordingly, the judgments are affirmed.
Garry, P.J., Lynch, Clark and Aarons, JJ., concur. Ordered that the judgments areaffirmed.
Footnote *:Defendant previously pleadedguilty to burglary in the third degree as charged in a separate superior court information and,ultimately, County Court revoked the sentence of probation imposed upon that conviction andresentenced defendant to a prison term of 2 to 6 years. The resulting judgments are the subject ofa separate appeal (People v Bailey, 157 AD3d 1135 [2018] [decided herewith]), and County Court directed that the sentences imposed underthe respective convictions be served consecutively.