People v Mateo

2018 NY Slip Op 07802 [166 AD3d 1246]

November 15, 2018

Appellate Division, Third Department

As corrected through Wednesday, January 2, 2018

[*1]

The People of the State of New York,Respondent, v Emanuel Mateo, Appellant.

Carolyn B. George, Albany, for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.

Devine, J. Appeal from a judgment of the County Court of Albany County (Carter,J.), rendered March 3, 2017, convicting defendant upon his plea of guilty of the crime ofconspiracy in the second degree.

Defendant and others were charged in a multicount indictment with conspiracy in thesecond degree stemming from their roles in a narcotics trafficking ring. Pursuant to aplea agreement, defendant pleaded guilty to that charge and waived his right to appeal. Inexchange, the People promised not to pursue additional state charges related to theconspiracy and represented that federal prosecutors had agreed not to pursue relatedfederal charges. County Court (Herrick, J.) outlined the terms of the plea agreement,which required that defendant, among other conditions, cooperate with the ProbationDepartment in its preparation of the presentence report and cooperate in the prosecutionagainst the named codefendants.^[FN*] The court made no sentencing promiseand warned defendant that he could face a potential prison term of 81/3 to25 years that could run consecutively to a prison term imposed on a Queens Countymatter. The court explained that defendant's ultimate sentence would depend uponwhether he had been truthful and his level of cooperation.

At sentencing, the People argued that defendant should receive the maximumsentence because he had denied knowledge in his interview with the ProbationDepartment about who was involved in the drug conspiracy and had not been truthfulwhen called to testify at the trial of one of the codefendants. County Court (Carter, J.)reviewed the trial transcript and other relevant documents and found that defendant hadnot fulfilled his obligations under the plea agreement [*2]and sentenced him to a prison term of 4 to 12 years, to beserved consecutively to the prison term imposed on the Queens County matter.Defendant appeals.

We affirm. Initially, we reject defendant's challenge to the validity of his waiver ofappeal. During the plea allocution, County Court (Herrick, J.) explained, after advisingdefendant of the trial-related rights that he was automatically relinquishing by pleadingguilty, that the waiver of appeal was a separate and distinct condition of his plea andwould include any challenge to a sentence that was consistent with the terms of the pleaagreement. Defendant also signed a written waiver of appeal after reviewing it withcounsel and assuring the court that he understood it, which counsel confirmed.Accordingly, we find that defendant's combined oral and written waiver of appeal wasknowing, voluntary and intelligent (see People v Sanders, 25 NY3d 337, 340-341 [2015]; People v Lopez, 6 NY3d248, 256 [2006]; People vChaney, 160 AD3d 1281, 1282-1283 [2018], lv denied 31 NY3d 1146[2018]).

Inasmuch as defendant had been advised of the maximum potential sentence thatcould be imposed if he failed to abide by the conditions of the plea agreement, hischallenge to the sentence as harsh and excessive is precluded by his valid appeal waiver(see People v Hidalgo, 91 NY2d 733, 736-737 [1998]; People v Savage, 158 AD3d854, 855-856 [2018]; People v Hutchison, 151 AD3d 1481, 1482 [2017]).Defendant's claims that the court enhanced or otherwise failed to impose an agreed-uponsentence are incorrect, as the court made no sentencing promise but, rather, advised himof the maximum potential sentence, indicating that the ultimate sentence would bedecided by the court based upon his postplea conduct (compare People v Garrow, 147AD3d 1160, 1161-1162 [2017]). Defendant and defense counsel addressed theissues raised regarding defendant's compliance and cooperation at sentencing and did notmove to withdraw the guilty plea or request an evidentiary hearing to develop the recordfurther (see CPL 220.60 [3]). To the extent that defendant relies upon mattersoutside of the record on appeal, they are more properly raised in a motion pursuant toCPL article 440 (see People vJackson, 163 AD3d 1273, 1275 [2018]).

Garry, P.J., Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.

Footnote *:The cooperationagreement was not reduced to writing.