| People v Koontz |
| 2018 NY Slip Op 07779 [166 AD3d 1215] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Koontz, Appellant. |
Linda B. Johnson, East Greenbush, for appellant.
Joel E. Abelove, District Attorney, Troy (Jacob B. Sher of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Rensselaer County(Young, J.), rendered December 18, 2015, convicting defendant upon his plea of guiltyof the crime of criminal possession of a controlled substance in the fourth degree.
Defendant waived indictment and agreed to be prosecuted pursuant to a superiorcourt information charging him with one count of criminal possession of a controlledsubstance in the fourth degree. In return for his acceptance into the judicial diversionprogram (see CPL 216.05), defendant pleaded guilty as charged in fullsatisfaction of the superior court information and waived his right to appeal. Consistentwith the terms of the plea agreement and the judicial diversion program contractexecuted by defendant, defendant was advised that, if he failed to complete the program,he could be sentenced to a maximum period of eight years in prison followed by threeyears of postrelease supervision. Thereafter, defendant was charged in two separateindictments with various drug-related crimes involving the possession and sale of heroin.Because of the charges, defendant was issued a notice of drug court violation. As part ofa negotiated global disposition of the two indictments and notice of drug court violation,defendant pleaded guilty to criminal sale of a controlled substance in the third degree andcriminal possession of a controlled substance in the third degree in full satisfaction of theindictments and waived his right to appeal. Defendant also waived his right to a hearingand admitted to violating the terms and conditions of the judicial diversion programcontract, with the understanding that County Court would commit to imposing a prisonterm of seven years, to be followed by three years of postrelease supervision, to runconsecutively to the two concurrent two-year prison terms that he was promised inexchange for his guilty plea in satisfaction of the indictments. When defendant appearedfor sentencing, defendant reaffirmed his waiver of appeal by executing a written waiverof appeal in open court, and County Court, in accordance with the terms of the globaldisposition, sentenced defendant to the agreed-upon sentence. Defendantappeals.
[*2] We affirm. Initially, we rejectdefendant's contention that his waiver of the right to appeal was not knowing, intelligentand voluntary. The plea minutes reflect that, at the outset of the plea proceeding,defendant was advised that a waiver of the right to appeal was a condition of the pleaagreement. Defense counsel confirmed that this was a negotiated term, and defendantverbalized his understanding that he was required to waive his right to appeal as part ofthe agreement (see People vChaney, 160 AD3d 1281, 1282-1283 [2018], lv denied 31 NY3d 1146[2018]; People v Gagnon,153 AD3d 1451, 1452 [2017]). County Court then advised defendant that hisappellate rights were separate and distinct from the trial-related rights that he wasautomatically forfeiting by pleading guilty, allowed defendant to discuss the waiver ofappeal with his counsel and confirmed that defendant had no further questions regardingthe waiver of appeal (see People v Chaney, 160 AD3d at 1282-1283; People v Savage, 158 AD3d854, 855 [2018]; People vEmpey, 144 AD3d 1201, 1202-1203 [2016], lv denied 28 NY3d 1144[2017]). At sentencing, defendant assented to and executed in open court a writtenappeal waiver, which stated that he was knowingly and voluntarily waiving his "separateand distinct" right to appeal, that his attorney had counseled him on the legalramifications and consequences of the waiver and that, among other things, he wasgiving up his right to appeal to take advantage of the plea agreement offered to him (see People v Lomax, 161AD3d 1454, 1455 [2018]; People v Collins, 53 AD3d 932, 933 [2008], lvdenied 11 NY3d 831 [2008]; cf. People v Young, 253 AD2d 982, 982-983[1998], lv denied 92 NY2d 1055 [1999]; see also People v Pope, 129 AD3d 1389, 1391 n [2015,Devine, J., concurring] [opining that it is "somewhat peculiar for a written appeal waiverto be executed at sentencing after the waiver is discussed during a plea colloquy" butnoting this Court's prior acceptance of such procedure]). Given defendant's valid waiverof appeal, he is foreclosed from now challenging the agreed-upon sentence as harsh andexcessive (see People vLopez, 6 NY3d 248, 256 [2006]; People v Gagnon, 153 AD3d at 1452;People v Wood, 150 AD3d1544, 1545 [2017], lv denied 32 NY3d 942 [2018]; People v Lavalley, 150 AD3d1339, 1340 [2017]), as he was informed of the maximum prison sentence that couldbe imposed should he violate the conditions of the plea agreement and fail to completethe judicial diversion program (see People v Savage, 158 AD3d at 855-856; People v Hutchison, 151 AD3d1481, 1482 [2017]).
Although defendant's challenge to the voluntariness of his plea survives his validwaiver of the right to appeal (see People v Tucker, 164 AD3d 948, 950 [2018]), his claimhas not been preserved for our review as the record does not reflect that he made anappropriate postallocution motion (see CPL 220.60 [3]; People v Guidry, 158 AD3d901, 902 [2018]; People vWilliams, 155 AD3d 1253, 1254 [2017], lv denied 31 NY3d 1089[2018]). "Indeed, defendant did not challenge the voluntariness of his plea until thisappeal and after having admitted to failing to comply with the terms of the judicialdiversion program contract" (People v Austin, 141 AD3d 956, 957 [2016]; see People v Smith, 136 AD3d1107, 1108 [2016], lv denied 27 NY3d 1075 [2016]; People v Donovan, 94 AD3d1230, 1231 [2012]). Moreover, the narrow exception to the preservation rule isinapplicable as defendant did not make any statements during the plea colloquy orsentencing proceeding that cast doubt upon his guilt, negated an element of the crime orcalled into question the voluntariness of his plea (see People v Pastor, 28 NY3d 1089, 1090-1091 [2016];People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Tucker, 164AD3d at 950).
Defendant's ineffective assistance of counsel claim survives the valid appeal waiveronly to the extent that it implicates the voluntariness of his guilty plea; however, the issueis unpreserved for appellate review (see People v Chaney, 160 AD3d at 1285;People v Empey, 144 AD3d at 1203; People v Austin, 141 AD3d at957-958).
Devine, Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.