People v Horton

2018 NY Slip Op 08584 [167 AD3d 1166]

December 13, 2018

Appellate Division, Third Department

As corrected through Wednesday, January 30, 2018

[*1]

The People of the State of New York,Respondent, v Steven A. Horton Jr., Appellant.

Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), forappellant.

Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.

Appeal from a judgment of the County Court of St. Lawrence County (Champagne, J.),rendered November 21, 2016, convicting defendant upon his plea of guilty of the crime ofstrangulation in the second degree.

In full satisfaction of a two-count indictment, defendant agreed to plead guilty to one countof strangulation in the second degree with the understanding that, although sentencing would beleft to County Court's discretion, the sentence imposed would not exceed a prison term of21/2 years followed by 11/2 years of postrelease supervision. Theplea agreement also required defendant to waive his right to appeal and to cooperate in theprosecution of his codefendant. Following a detailed plea colloquy, defendant pleaded guilty ascontemplated and thereafter was sentenced to a prison term of 21/2 years followedby 11/2 years of postrelease supervision. This appeal ensued.

Contrary to defendant's assertion, we find that he knowingly, intelligently and voluntarilywaived his right to appeal. County Court advised defendant that the waiver of the right to appealwas separate and distinct from the trial-related rights that defendant automatically was forfeitingby pleading guilty, and defendant, who was aware that such waiver was a condition of the pleaagreement, confirmed his understanding thereof (see People v Jawan, 165 AD3d 1350, 1350 [2018]; People v Selim, 164 AD3d 1576,1576 [2018]). Additionally, defendant executed a written waiver in open court, wherein heexpressly waived his right to challenge the sentence imposed as harsh and excessive and, inresponse to County Court's inquiries, indicated that he had read the written waiver, understood itcontents, had no questions relative thereto and had been afforded sufficient time to confer withcounsel (see People v McDonald,165 AD3d 1327, 1327-1328 [2018]; People v Gilliam, 162 AD3d 1413, 1414 [2018], lv denied32 NY3d 1064 [2018]; People vBrothers, 155 AD3d 1257, 1258 [2017]). Under these circumstances, we find thatdefendant validly waived his right to appeal (see People v Adams, 165 AD3d 1343, 1344 [2018]; People v Tucker, 161 AD3d 1481,1482 [2018], lv denied 31 NY3d 1153 [2018]). Given the valid waiver, defendant'schallenge to the severity of the sentence imposed is precluded (see People v Selim, 164AD3d at 1576; People v Sharpe, 159AD3d 1192, 1193 [2018], lv denied 31 NY3d 1121 [2018]).

Devine, J.P., Mulvey, Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.