People v Franklin

2018 NY Slip Op 06156 [164 AD3d 1547]

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 Harry Franklin, 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.), renderedOctober 12, 2016, convicting defendant upon his plea of guilty of the crime of attempted assaultin the second degree.

In full satisfaction of a five-count indictment, defendant ultimately agreed to plead guilty toone count of attempted assault in the second degree in exchange for a prison term of11/2 to 3 years. The plea agreement also required defendant to waive his right toappeal. Consistent with the terms of that agreement, defendant pleaded guilty to the subjectcharge, and County Court sentenced defendant—as a second felony offender—tothe agreed-upon term of imprisonment. This appeal ensued.

Contending that his appeal waiver was invalid, defendant challenges his sentence as harshand excessive. From our review of the plea colloquy, we are satisfied that defendant knowingly,intelligently and voluntarily waived his right to appeal. Although defendant initially rejected theplea offer, after conferring with counsel, he opted to accept the plea while proposing to reservehis right to appeal. County Court then explained—and the People confirmed—thatthe appeal waiver was a component of the plea package. Defendant again conferred with counseland agreed to waive his right to appeal. After reviewing the rights normally forfeited upon aguilty plea and confirming the agreed-upon sentence, County Court explained that "[n]ormally, aperson who pleads guilty, they still have the right to take an appeal. However, in your case theDistrict Attorney . . . [is] asking you to give up your right to appeal." Defendantacknowledged that he understood and, after signing the appeal waiver in open court, confirmedthat he discussed the waiver with counsel and understood that he was "giving up a right. . . to have a higher court review these proceedings." In our view, the court'sinstructions adequately informed defendant that his right to appeal was "separate and distinct"from the rights forfeited upon a plea, although that precise phrase was not utilized (see People v Sanders, 25 NY3d337, 341-342 [2015]). This is all the more so given defendant's extensive criminalbackground (see id. at 342). It follows that defendant's challenge to the severity of theagreed-upon sentence is precluded (seePeople v Ward, 161 AD3d 1488, 1488 [2018], lv denied — NY3d&mdash, 2018 NY Slip Op 98733[U] [2018]; People v Gagnon, 153 AD3d 1451, 1452 [2017]).

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