| People v Tucker |
| 2018 NY Slip Op 05629 [164 AD3d 948] |
| August 2, 2018 |
| Appellate Division, Third Department |
[*1](August 2, 2018)
| The People of the State of New York,Respondent, v Jackson D. Tucker III, Appellant. |
Adam W. Toraya, Albany, for appellant.
Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered May 15, 2015, convicting defendant upon his pleas of guilty of thecrimes of assault in the second degree and grand larceny in the third degree.
In November 2013, defendant was charged in a nine-count indictment with various crimes asa result of a domestic dispute with his girlfriend that culminated in a physical altercation. InDecember 2014, defendant was arrested and charged in a superior court information with grandlarceny in the third degree stemming from an incident involving the theft of catalytic convertersfrom several vehicles. In a global disposition of the indictment and superior court information,defendant pleaded guilty to assault in the second degree and grand larceny in the third degree andexecuted two waivers of appeal in open court. County Court sentenced defendant, in accordancewith the terms of the plea agreement, to concurrent prison terms of 2
[*2] Weaffirm. Initially, defendant's challenge to the validity of his appeal waivers is without merit.During the plea colloquies, County Court's explanation of what the waivers of the right to appealentailed adequately conveyed to defendant that such right is separate and distinct from thetrial-related rights that defendant was forfeiting by pleading guilty (see People v Lopez, 6 NY3d 248,256 [2006]; People v Chaney, 160AD3d 1281, 1282-1283 [2018]; People v Hartfield, 151 AD3d 1116, 1117 [2017], lv denied29 NY3d 1127 [2017]). "[A]lthough County Court should have more clearly distinguisheddefendant's right to appeal from the remainder of the rights that defendant forfeited uponpleading guilty" (People v Griffin,134 AD3d 1228, 1229 [2015], lv denied 27 NY3d 1132 [2016]; see People v Waite, 120 AD3d1446, 1447 [2014]), the record nonetheless reflects that County Court obtained the requiredassurances that defendant understood that he was giving up certain appellate rights and, afterconferring with counsel, he executed detailed written waivers in open court (see People v Suits, 158 AD3d 949,950 [2018]; People v Caldwell, 148AD3d 1468, 1468 [2017]). Inasmuch as the oral colloquies—combined with thewritten waivers wherein defendant expressly waived his right to challenge the sentencesimposed—demonstrate his understanding and voluntary waiver of his right to appeal,defendant's challenge to the severity of the agreed-upon sentences imposed is precluded (see People v Cayon, 158 AD3d946, 947 [2018], lv denied 31 NY3d 1080 [May 30, 2018]; Peoplev Gagnon, 153 AD3d 1451, 1452 [2017]).
Defendant also contends that his guilty pleas were not knowing, voluntary and intelligentbecause the terms of his plea agreement provided for concurrent sentences, and, followingsentencing in this matter, he received a prison sentence in Warren County on an unrelatedconviction that was ordered to run consecutively to the sentences that he received here. Althoughdefendant's challenge to the voluntariness of his pleas survives his valid waivers of the right toappeal, his claim has not been preserved for our review as the record does not reflect that hemade an appropriate postallocution motion (see People v Guidry, 158 AD3d 901, 902 [2018]; People v Williams, 155 AD3d1253, 1254 [2017], lv denied 31 NY3d 1089 [May 14, 2018]). Indeed, "if [defendant] was confused about [th]is issue, he wasobligated to move to withdraw his plea on that ground before the sentencing court" (People v Pastor, 28 NY3d 1089,1091 [2016]). Moreover, the narrow exception to the preservation rule is inapplicable asdefendant did not make any statements during the plea colloquies or sentencing proceeding thatcast doubt upon his guilt or called into question the voluntariness of his pleas (see id. at1090-1091; People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Mathayo, 155 AD3d1090, 1091 [2017], lv denied 30 NY3d 1107 [2018]). In any event, were we toexamine this issue, we would find his guilty pleas to be knowing, voluntary and intelligent. Atthe plea colloquies, County Court specifically warned defendant that if a plea agreement in theunrelated Warren County matter was not reached or was otherwise unsatisfactory to defendant,the ultimate disposition in that case would have no effect on his guilty pleas and sentences here,to which defendant confirmed his understanding.
Garry, P.J., Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.