| People v Joubert |
| 2018 NY Slip Op 01004 [158 AD3d 1314] |
| February 9, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Jose L. Joubert, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Joseph R. Plukas of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Douglas A. Randall, J.), renderedDecember 9, 2014. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]).Contrary to defendant's contention, the waiver of the right to appeal was knowingly, intelligently,and voluntarily entered (see People vGoodwin, 147 AD3d 1352, 1352 [4th Dept 2017], lv denied 29 NY3d 1032[2017]; see generally People vSanders, 25 NY3d 337, 340-341 [2015]). County Court ensured that defendantunderstood that "the right to appeal is separate and distinct from those rights automaticallyforfeited upon a plea of guilty" (People vLopez, 6 NY3d 248, 256 [2006]; see People v Brand, 112 AD3d 1320, 1321 [4th Dept 2013], lvdenied 23 NY3d 961 [2014]). Contrary to defendant's contention, the court was not requiredto advise defendant that the waiver of the right to appeal encompassed the court's suppressionruling (see Brand, 112 AD3d at 1321; see generally People v Kemp, 94 NY2d831, 833 [1999]), and his challenge to the adverse suppression ruling is foreclosed by the validwaiver of the right to appeal (see Kemp, 94 NY2d at 833; People v Carter, 147 AD3d 1540,1540 [4th Dept 2017], lv denied 29 NY3d 1030 [2017]). We agree with defendant,however, that the waiver of the right to appeal does not encompass his challenge to the severityof the sentence. Although "it is evident that defendant waived [his] right to appeal [his]conviction, there is no indication in the record that defendant waived the right to appealthe harshness of [his] sentence" (People v Maracle, 19 NY3d 925, 928 [2012]; see People v Gang, 145 AD3d1566, 1566-1567 [4th Dept 2016], lv denied 29 NY3d 997 [2017]). Nevertheless, wereject defendant's contention that his sentence is unduly harsh and severe.Present—Whalen, P.J., Centra, Carni, NeMoyer and Curran, JJ.