People v Marable

2018 NY Slip Op 06152 [164 AD3d 1542]

September 20, 2018

Appellate Division, Third Department

As corrected through Wednesday, October 24, 2018

[*1]

The People of the State of New York,Respondent, v Michael Marable, Appellant.

Arthur G. Dunn, Troy, for appellant.

Barbara D. Underwood, Attorney General, New York City (Nikki Kowalski of counsel), forrespondent.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), renderedDecember 22, 2015, which revoked defendant's probation and imposed a sentence ofimprisonment.

Defendant and multiple codefendants were charged in a 261-count indictment with variouscrimes arising from a large-scale drug trafficking operation. In satisfaction thereof, defendantpleaded guilty to attempted criminal sale of a controlled substance in the third degree and wassentenced to five years of probation. He was subsequently charged with violating the conditionsof his probation. He entered an admission to the probation violations and waived his right toappeal. In exchange, County Court agreed to adjourn the proceedings to permit defendant todemonstrate compliance with the conditions of probation and, if he did so, he would beresentenced to time served and his probation would be restored. If he did not, his probationwould be revoked and he would be resentenced to a term of imprisonment, the maximum ofwhich was 51/2 years followed by two years of postrelease supervision. Defendantfailed to demonstrate his compliance with the conditions of probation and, as a result, hisprobation was revoked and he was resentenced to a prison term of 51/2 yearsfollowed by two years of postrelease supervision. Defendant now appeals.

Defendant contends that his appeal waiver is invalid and does not preclude him fromchallenging the severity of the resentence. We disagree. The record reveals that defendant waivedhis right to appeal specifically with respect to the disposition of the probation violations, whichextended to all matters pertaining to resentencing. Moreover, County Court advised defendant ofthe separate and distinct nature of the waiver and ascertained that he understood its ramifications.Furthermore, after conferring with counsel, defendant executed a written waiver in open courtthat encompassed "any issues regarding the sentence being harsh and/or excessive." Under thesecircumstances, we find that the appeal waiver is valid and forecloses any claim that theresentence is harsh and excessive (seePeople v Rogers, 162 AD3d 1410 [2018]; People v Tucker, 161 AD3d 1481, 1482 [2018], lv denied31 NY3d 1153 [2018]).

[*2] Egan Jr., J.P., Devine,Clark, Aarons and Rumsey, JJ., concur. Ordered that the judgment is affirmed.