| People v Shaw |
| 2018 NY Slip Op 00363 [157 AD3d 1138] |
| January 18, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v KimberlyShaw, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
James R. Farrell, District Attorney, Monticello (Richard K. Caister Jr. of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.),rendered November 9, 2015, (1) convicting defendant upon her plea of guilty of failure to registeran Internet account or identifier under the Sex Offender Registration Act, and (2) which revokeddefendant's probation and imposed a sentence of imprisonment.
In satisfaction of a multicount indictment, defendant pleaded guilty in November 2012 to onecount of sexual abuse in the first degree. Consistent with the terms of the plea agreement,defendant was placed on probation for 10 years in January 2013—subject to various termsand conditions—one of which required defendant to provide her probation officer with alltelephone and Internet service provider records, as well as written authorization to request suchrecords. Shortly thereafter, defendant was classified as a risk level three sex offender forpurposes of the Sex Offender Registration Act (see Correction Law art 6-C [hereinafterSORA]).
Insofar as is relevant here, defendant was charged with violating the terms of her probation inJanuary 2015 by having an unregistered cell phone and social media account. While thatviolation proceeding was pending, defendant also was charged in a superior court informationwith the crime of failure to register an Internet account or identifier under SORA. Pursuant to anegotiated agreement, which required defendant to waive her right to appeal, defendant pleadedguilty to failure to register an Internet account or identifier under SORA and admitted violatingher probation. County Court thereafter revoked defendant's probation and [*2]resentenced her—upon her prior conviction of sexual abusein the first degree—to 3
Defendant primarily contends that her waiver of the right to appeal was not knowing,intelligent and voluntary. We disagree. Nothing on the face of the plea colloquy suggests thatdefendant's asserted memory lapses or mental health issues impaired her ability to understand thenature of the plea proceeding or the ramifications of her waiver; to the contrary, the recordreflects that defendant responded appropriately to County Court's inquiries and assured the courtthat she understood what was transpiring (see People v Sorey, 55 AD3d 1063, 1064 [2008], lv denied11 NY3d 930 [2009]; People vBennett, 30 AD3d 631, 631 [2006], lv denied 7 NY3d 809 [2006]). As to thesufficiency of the waiver itself, defendant was informed that an appeal waiver was a condition ofher plea agreement, was advised of its separate and distinct nature and confirmed that sheunderstood and agreed to the waiver (seePeople v Tulip, 150 AD3d 1564, 1565 [2017]; People v Howe, 150 AD3d 1321, 1322 [2017]). Additionally,defendant and her attorney executed a detailed written appeal waiver in open court (see People v White, 154 AD3d1012, 1013 [2017]; People vAdams, 153 AD3d 1449, 1450 [2017]). Finally, County Court expressly asked defendantwhether she understood the meaning of the word "waiver" and, when defendant responded in thenegative, the court elaborated further—following which defendant reaffirmed her desire togo forward with her plea (comparePeople v Joseph PP., 153 AD3d 970, 971 [2017]). "As defendant's full appreciation ofthe consequences and understanding of the terms and conditions of the plea, including a waiverof the right to appeal, are apparent on the face of the record, we find that [her] waiver of appealwas made knowingly, intelligently and voluntarily" (People v Bateman, 151 AD3d 1482, 1483 [2017] [internalquotation marks and citations omitted]; see People v Griffin, 134 AD3d 1228, 1228-1229 [2015], lvdenied 27 NY3d 1132 [2016]).
To the extent that defendant's brief may be read as challenging the voluntariness of her plea,although this argument survives her valid appeal waiver, it is unpreserved for our review in theabsence of an appropriate postallocution motion (see People v Audette, 108 AD3d 943, 943-944 [2013]). Inasmuchas defendant did not make any statements during the plea colloquy that were inconsistent withher guilt or otherwise called into question the voluntariness of her plea, the narrow exception tothe preservation requirement was not implicated (see id. at 944). Accordingly, CountyCourt's judgment is affirmed.
Garry, P.J., Lynch, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.