| People v Cherry |
| 2018 NY Slip Op 07782 [166 AD3d 1220] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Rufus Cherry, Also Known as TJ,Appellant. |
Stephen W. Herrick, Public Defender, Albany (Jessica Gorman of counsel), forappellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered January 14, 2016, convicting defendant upon his plea of guilty of the crimeof criminal sexual act in the third degree.
In full satisfaction of an indictment charging him with various sex-related offensesstemming from sexual contact with a 16-year-old girl, defendant pleaded guilty tocriminal sexual act in the third degree and executed a waiver of the right to appeal. Atsentencing, County Court granted defendant's request to redact a portion of thepresentence report (hereinafter PSR) containing a statement made by the arrestingofficer. Defendant was subsequently sentenced, consistent with the terms of the pleaagreement, to a prison term of two years, to be followed by six years of postreleasesupervision. Defendant appeals.
We affirm. Initially, we reject defendant's contention that his waiver of the right toappeal was invalid. 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 [2018], lv denied 31 NY3d 1146 [2018];People v Gagnon, 153AD3d 1451, 1452 [2017]). County Court then adequately conveyed to defendantthat his right to appeal was separate and distinct from the trial-related rights that he wasautomatically forfeiting by pleading guilty and confirmed defendant's understanding ofthe waiver of appeal (see Peoplev Tucker, 164 AD3d 948, 949 [2018]; People v Chaney, 160 AD3d at1282-1283). The record further reflects that defendant executed a written appeal waiverin open court and acknowledged that he had discussed the waiver with counsel,understood it and agreed to be bound by it (see People v Rutigliano, 159 AD3d 1280, 1280 [2018],lv denied 31 NY3d 1121 [2018]; People v [*2]Simmons, 159AD3d 1270, 1271 [2018]). Accordingly, we find that defendant's combined oral andwritten waiver of appeal was knowing, intelligent and voluntary (see People v Wood, 161 AD3d1447, 1448 [2018]; Peoplev Baxter, 154 AD3d 1010, 1011 [2017]). Given defendant's valid waiver ofappeal, 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]).
Although defendant's challenge to the voluntariness of his plea survives his validwaiver of the right to appeal, his claim has not been preserved for our review as therecord does not reflect that he made an appropriate postallocution motion (seeCPL 220.60 [3]; People vGuidry, 158 AD3d 901, 902 [2018]; People v Williams, 155 AD3d 1253, 1254 [2017], lvdenied 31 NY3d 1089 [2018]). Moreover, the narrow exception to the preservationrule is inapplicable 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).
Finally, the People do not object to defendant's contention that, although CountyCourt granted defendant's request at sentencing to strike a statement in the PSR made bythe arresting officer, the language objected to has not been redacted from the PSR.Having reviewed the confidential PSR in the record before us and confirmed that theobjected-to language from the arresting officer remains in the PSR, we order that suchstatement be redacted from all copies of defendant's PSR (see People v Freeman, 67AD3d 1202, 1203 [2009]).
Egan Jr., J.P., Clark, Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed, and the County Court of Albany County is directed to redact the arrestingofficer's statement from all copies of defendant's presentence investigation report.