| People v McCarthy |
| 2018 NY Slip Op 01675 [159 AD3d 1189] |
| March 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Kevin M.McCarthy, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), renderedMarch 30, 2015, convicting defendant upon his plea of guilty of the crime of rape in the seconddegree.
In satisfaction of various pending charges, defendant pleaded guilty to rape in the seconddegree and waived his right to appeal both orally and in writing. The plea agreement did notcontemplate an agreed-upon sentence, but County Court informed defendant during the pleacolloquy that he could receive a sentence of up to seven years in prison. County Courtsubsequently sentenced defendant, as a second felony offender, to six years in prison, to befollowed by five years of postrelease supervision. Defendant now appeals.
We are unpersuaded by defendant's contention that his waiver of the right to appeal isinvalid. The record reflects that County Court adequately explained to defendant that the waiverof the right to appeal was separate and distinct from the rights forfeited by the guilty plea, anddefendant acknowledged that he understood the nature of the appeal waiver (see People v Lopez, 6 NY3d 248,256 [2006]; People v Weir, 155AD3d 1190, 1191 [2017]). Moreover, defendant signed a written waiver of the right toappeal in open court and in the presence of his counsel, in which he affirmed that he understoodthat he was waiving his right to argue, among other things, that the sentence is harsh andexcessive (see People v Peterkin,156 AD3d 962, 963 [2017]; Peoplev Cuchelo, 155 AD3d 1189, 1190 [2017]). Notwithstanding the fact that defendantnever orally confirmed before he signed the waiver that he read and understood it, the recordestablishes that his waiver of the right to appeal was knowing, voluntary and intelligent (see People v Nichols, 155 AD3d1186, 1187 [2017]; People vEmpey, 144 AD3d 1201, 1202-1203 [2016], lv denied 28 NY3d 1144 [2017]).In light of defendant's valid appeal waiver, his [*2]contention thatthe sentence is harsh and excessive is precluded (see People v Dutcher, 156 AD3d 1122, 1122 [2017]; People v Bigwarfe, 155 AD3d1450, 1450 [2017]).
Devine, J.P., Mulvey, Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.