| People v Charles |
| 2018 NY Slip Op 05537 [163 AD3d 1362] |
| July 26, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Smith Charles, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.
Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), forrespondent.
Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), renderedSeptember 21, 2016, convicting defendant upon his plea of guilty of the crimes of criminalpossession of a forged instrument in the second degree, identity theft in the second degree andunlawful possession of personal identification information in the third degree.
In full satisfaction of a 71-count indictment, defendant was offered the opportunity to pleadguilty to one count of criminal possession of a forged instrument in the second degree, one countof identity theft in the second degree and one count of unlawful possession of personalidentification information in the third degree with the understanding that he would be sentencedto 30 days in the local jail and five years of probation. The negotiated plea agreement alsorequired defendant to waive his right to appeal. Defendant subsequently pleaded guilty to theenumerated offenses, and County Court imposed the agreed-upon concurrent sentences. Thisappeal ensued.
We affirm. Although County Court's explanation of the waiver of the right to appeal arguablycould have been more expansive, the court made clear that an appeal waiver was a condition ofthe plea agreement (see People vVenable, 161 AD3d 1315, 1315 [2018]; People v Sharpe, 159 AD3d 1192, 1193 [2018], lv denied31 NY3d 1121 [2018]), explained that the right to appeal was "a separate anddistinct right" (see People vGilmour, 160 AD3d 1219, 1220 [2018]; People v Lester, 141 AD3d 951, 952-953 [2016], lv denied28 NY3d 1185 [2017]) and confirmed that defendant was willing to "give up this separate rightof appeal" in exchange for the favorable plea agreement. Additionally, defendant signed a writtenwaiver in open court, indicated that he had discussed the waiver with counsel and assured CountyCourt that he understood the nature of the right being forfeited (see People v Edwards, 160 AD3d1280, 1281 [2018]; People vCayon, 158 AD3d 946, 947 [2018], lv denied 31 NY3d 1080 [2018]). Underthese circumstances, the combined oral colloquy and written appeal waiver establish thatdefendant knowingly, intelligently and voluntarily waived his right to appeal his conviction andsentence (see People v Venable, 161 AD3d at 1315; People v Edwards, 160AD3d at 1281; [*2]People v Dutcher, 156 AD3d 1122, 1122 [2017]).Accordingly, his challenge to the agreed-upon sentences imposed is precluded (see People vEdwards, 160 AD3d at 1281; People v Cayon, 158 AD3d at 947).
Garry, P.J., McCarthy, Egan Jr., Lynch and Clark, JJ., concur. Ordered that the judgment isaffirmed.