| People v Savage |
| 2018 NY Slip Op 00579 [158 AD3d 854] |
| February 1, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tina L. Savage, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), forappellant.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
Appeal from a judgment of the County Court of St. Lawrence County (Champagne, J.),rendered May 2, 2016, convicting defendant upon her plea of guilty of the crime of criminalpossession of a controlled substance in the third degree.
In August 2015, defendant—in full satisfaction of a two-count indictment and anotheruncharged drug sale—entered into a plea agreement before County Court (Richards, J.)whereby she agreed to plead guilty to criminal possession of a controlled substance in the thirddegree with the understanding that she would enter a judicial diversion program. If successful,defendant would be placed on interim probation for up to two years in order to earn a finalsentence of five years of straight probation—with a credit for the time spent on interimprobation; if unsuccessful, defendant faced a maximum prison term of 12 years followed by threeyears of postrelease supervision. The plea agreement also required defendant to, among otherthings, waive her right to appeal. After being apprised of both the trial-related rights that shewould be forfeiting and the scope of her waiver of the right to appeal, defendant executed awritten waiver of appeal in open court and thereafter pleaded guilty to criminal possession of acontrolled substance in the third degree. Defendant then executed the contract governing herparticipation in the judicial diversion program and was released to probation supervision.
Approximately two months later, defendant was charged with violating the terms andconditions of the judicial diversion program and her participation therein was terminated. By allaccounts, defendant subsequently admitted to such violations, and the matter was adjourned for[*2]sentencing with the understanding that County Court wouldcommit to imposing a prison term of six years followed by three years of postrelease supervisionand would order shock incarceration. When defendant appeared before County Court(Champagne, J.) for sentencing, the court honored the prior sentencing commitment andthereafter sentenced defendant, as a second felony drug offender, to six years in prison followedby three years of postrelease supervision—together with a judicial mandate for shockincarceration. Defendant now appeals, primarily arguing that the sentence imposed was harsh andexcessive.
We affirm. Initially, we reject defendant's assertion that her waiver of the right to appeal wasnot knowing, intelligent and voluntary. County Court (Richards, J.) explained that defendant'sappellate rights were separate and distinct from the trial-related rights that she was forfeiting andexpressly advised her of those appellate rights that were not encompassed by the waiver of theright to appeal. Additionally, defendant signed a detailed written waiver in open court and, inresponse to questioning by County Court, indicated that she had read the written waiver andunderstood both its contents and the appellate rights that she was relinquishing. We thereforefind that defendant's combined oral and written waiver of the right to appeal was valid (see People v Hutchison, 151 AD3d1481, 1482 [2017]; People vTulip, 150 AD3d 1564, 1565 [2017]; People v Simon, 140 AD3d 1533, 1534 [2016]; People v Smith, 123 AD3d 1375,1375-1376 [2014], lv denied 26 NY3d 935 [2015]). In light of defendant's valid waiver,her challenge to the severity of the sentence imposed is precluded, as she was informed of themaximum prison sentence that could be imposed should she violate the conditions of the pleaagreement and fail to complete the judicial diversion program (see People v Hutchison,151 AD3d at 1482; People vDeprosperis, 132 AD3d 692, 693 [2015], lv denied 26 NY3d 1108 [2016];see also People v Simon, 140 AD3d at 1534).
McCarthy, J.P., Clark, Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgmentis affirmed.