| People v Douglas |
| 2019 NY Slip Op 00502 [168 AD3d 1285] |
| January 24, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Keith Douglas, Appellant. |
George J. Hoffman Jr., East Greenbush, for appellant.
P. David Soares, District Attorney, Albany (Noel Mendez of counsel), for respondent.
Appeal from a judgment of the County Court of Albany County (Lynch, J.), renderedOctober 19, 2016, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fourth degree.
Defendant, who suffers from substance abuse issues, was charged in a three-count indictmentwith various drug offenses. After it was determined that he was ineligible for the judicialdiversion program, defendant agreed to plead guilty to one count of criminal possession of acontrolled substance in the fourth degree with the understanding that he would be sentenced tofour years in prison followed by three years of postrelease supervision. The plea agreement alsorequired defendant to waive his right to appeal. Defendant thereafter pleaded guilty—infull satisfaction of the indictment—to one count of criminal possession of a controlledsubstance in the fourth degree, and the matter was adjourned for sentencing. At defendant'srequest, sentencing was briefly adjourned to explore his eligibility for shock incarceration. Afterit was determined that defendant was ineligible for that program, County Court sentenceddefendant, as an admitted second felony offender, to the agreed-upon term of imprisonment. Thisappeal ensued.
Defendant's challenge to the validity of his appeal waiver is unpersuasive. Although CountyCourt did not utilize the words "separate and distinct" to describe defendant's appellate rights, thecourt was not required to engage in any particular colloquy or utter any specific words in order toensure that defendant's waiver of the right to appeal was knowing, intelligent and voluntary (see People v Walker, 166 AD3d1393, 1393 [2018]; People vFranklin, 164 AD3d 1547, 1548 [2018]). County Court explained that, "in addition tothe waiver of [his] trial rights," the plea agreement also required defendant to "waive [his] rightto appeal . . . both the conviction and the sentence"—provided the sentencewas in accord with the terms of the plea agreement. In so doing, County Court did notimpermissibly "lump[ the appeal waiver] into the panoply of rights normally forfeited upon aguilty plea" (People v Hartfield, 151AD3d 1116, 1117 [2017] [internal quotation marks and citation omitted], lv denied29 NY3d 1127 [2017]). Defendant assured the court that he understood and, after conferring withcounsel, signed a written waiver in open court, "which explained that [defendant] ordinarilyretained the right to appeal and adequately reinforced the consequences of relinquishing thatright" (People v Johnson, 153 AD3d1031, 1032 [2017], lv denied 30 NY3d 980 [2017]). In response to County Court'sfurther questioning, defendant stated that he reviewed the waiver with counsel prior to signing it,understood its contents and agreed to be bound by its terms. Under these circumstances, we aresatisfied that County Court adequately explained the nature of the waiver and thereafterascertained that defendant understood and appreciated the ramifications and consequencesthereof (see People v Franklin, 164 AD3d at 1548; People v Garrow, 148 AD3d 1459, 1460 [2017], lv denied29 NY3d 1031 [2017]; People vGilbert, 145 AD3d 1196, 1196-1197 [2016], lv denied 28 NY3d 1184 [2017]).Accordingly, defendant's combined oral and written waiver of the right to appeal was valid.Given the valid appeal waiver, defendant's claim that the agreed-upon sentence imposed washarsh and excessive is precluded (seePeople v Muller, 166 AD3d 1240, 1241 [2018]).
Garry, P.J., Egan Jr., Mulvey, Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed.