| People v Sharpe |
| 2018 NY Slip Op 01677 [159 AD3d 1192] |
| March 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Andrew R.Sharpe, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Adam W. Stone of counsel), for respondent.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), renderedNovember 23, 2015, convicting defendant upon his plea of guilty of the crime of attemptedburglary in the second degree.
Defendant was charged in a four-count indictment with burglary in the second degree andother crimes stemming from his unlawful entry into a home, during which he stole a safe.Pursuant to a plea agreement, which required that defendant waive his right to appeal, he pleadedguilty to the reduced charge of attempted burglary in the second degree. Consistent with theagreement, defendant was sentenced, as an admitted persistent violent felony offender, to aprison term of 12 years to life. Defendant now appeals.
We affirm. Defendant's contention on appeal that the agreed-upon sentence is harsh andexcessive is precluded by his knowing, voluntary and intelligent waiver of appeal (see People v Lopez, 6 NY3d 248,256 [2006]; People v Tulip, 150AD3d 1564, 1565-1566 [2017]; People v Belile, 137 AD3d 1460, 1461 [2016]; cf. People v Bradshaw, 18 NY3d257, 265 [2011]). To that end, County Court advised defendant that an appeal waiver was acondition of the plea agreement, made clear the "separate and distinct" nature of the right toappeal and the appellate rights that survive the waiver, and ascertained that defendant had noquestions (People v Lopez, 6 NY3d at 256; see People v Lambert, 151 AD3d 1119, 1119 [2017], lvdenied 29 NY3d 1092 [2017]; People v Tulip, 150 AD3d at 1565). Defendant thenread and executed a detailed written waiver of appeal in open court, confirming that he hadsufficient time to discuss it with counsel and understood it. Accordingly, we find that defendant'scombined oral and written waiver of appeal is valid, foreclosing this challenge (see People v Bryant, 28 NY3d1094, 1096 [2016]; People vWebb, 157 AD3d 1132, 1132 [2018]).
[*2] Further, defendant's related claim regarding the nonmandatory nature of persistent felonyoffender sentencing was not preserved by an objection at sentencing (see People v Ortiz, 155 AD3d1241, 1241-1242 [2017]). In any event, were we to address this issue, we would reject it.The record reflects that the plea offer provided that defendant would be sentenced as a persistentviolent felony offender, a status he admitted, and that he would receive the minimum 12-yearsentence for that status, with life in prison as the required maximum (see Penal Law§ 70.08 [2], [3] [c]). The People complied with the requirements of CPL 400.16 andthe terms of the plea agreement, and defendant agreed to those terms and did not controvert theallegations in the predicate felony offender statement.
Garry, P.J., McCarthy, Devine, Mulvey and Pritzker, JJ., concur. Ordered that the judgmentis affirmed.