| People v Carter |
| 2018 NY Slip Op 07777 [166 AD3d 1212] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Gerard Carter, Also Known as June, Also Known as Smooth,Appellant. |
Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), forappellant.
Barbara D. Underwood, Attorney General, New York City (Jodi A. Danzig ofcounsel), for respondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Albany County(Lynch, J.), rendered November 13, 2015, convicting defendant upon his plea of guiltyof the crime of criminal sale of a controlled substance in the third degree.
As a result of an investigation by the Attorney General's Organized Crime Taskforce, defendant was charged in a 77-count indictment with conspiracy in the seconddegree and 20 additional felonies. After his arrest, defendant was charged in aneight-count indictment with crimes related to his possession of, among other things, agun and heroin.[FN*] Pursuant to a detailed written pleaagreement that included a waiver of appeal, the terms of which were outlined in opencourt, defendant pleaded guilty under count 6 of the 77-count indictment to criminal saleof a controlled substance in the third degree. Defendant also waived his right to appealduring the plea allocution and signed a one-page written waiver of appeal in court. Theplea agreement contemplated a prison sentence of seven years followed by three years ofpostrelease supervision and satisfied all charges in both indictments and certain potentialrelated charges. County Court sentenced defendant, as an admitted second felonyoffender, to the agreed-upon prison sentence, and defendant now appeals.
We affirm. Initially, defendant's challenge to his combined oral and written waiversof appeal is without merit (seePeople v Lopez, 6 NY3d 248, 256 [2006]; see also People v Sanders, 25 NY3d 337, 340-341 [2015]).During the plea colloquy, County Court first apprised defendant [*2]of the constitutional, trial-related rights that were forfeitedupon his guilty plea (see Peoplev Tyrell, 22 NY3d 359, 365 [2013]), and then advised him that, while he wouldordinarily retain the right to appeal, this plea agreement also required that he waive thatright in addition to his trial rights, making clear the separate and distinct nature of theappeal waiver (see People v Lopez, 6 NY3d at 256; People v Tucker, 164 AD3d948, 949 [2018]). A waiver of appeal was included in the written plea agreement,which defendant signed in open court after acknowledging that he had reviewed it withcounsel. After conferring with counsel, defendant then signed the one-page writtenwaiver of appeal, which also advised him of his rights, in which he expressly waived hisright to appeal the conviction and sentence. In response to the court's questions,defendant indicated that he understood and agreed to be bound by it. Under thesecircumstances, we find that the waiver of appeal was knowing, voluntary and intelligent(see People v Sanders, 25 NY3d at 340-341; People v Lopez, 6 NY3d at256; People v Brown, 163AD3d 1269, 1270 [2018]; see also People v Bryant, 28 NY3d 1094, 1095-1096[2016]). Given defendant's valid appeal waiver, his challenge to the severity of theagreed-upon sentence is foreclosed (see People v Lopez, 6 NY3d at 256; People v Cayon, 158 AD3d946, 947 [2018], lv denied 31 NY3d 1080 [2018]).
Clark, Mulvey, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:County Court denied thePeople's motion to consolidate the indictments.