| People v Ward |
| 2019 NY Slip Op 02758 [171 AD3d 1312] |
| April 11, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Andre Ward, Appellant. |
Paul J. Connolly, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Appeal from a judgment of the County Court of Schenectady County (Coccoma, J.), renderedJune 28, 2017, convicting defendant upon his plea of guilty of the crime of attempted criminalsexual act in the first degree.
Defendant was charged in a seven-count indictment with predatory sexual assault, criminalsexual act in the first degree, strangulation in the second degree as a sexually motivated felony,assault in the second degree as a sexually motivated felony, criminal possession of a weapon inthe third degree, unlawful imprisonment in the second degree and menacing in the second degree(141 AD3d 853, 853 [2016]). The charges stemmed from an incident during which defendantforcibly compelled the victim to perform oral sex on him and, in the course thereof, brandished aknife and stabbed, choked and threatened to kill the victim (id.).[FN*] In full satisfaction of the charges, defendantpleaded guilty to the reduced charge of attempted criminal sexual act in the first degree and, inconnection therewith, waived his right to appeal. Defendant was thereafter sentenced, inaccordance with the plea agreement, to eight years in prison and 15 years of postreleasesupervision. Defendant appeals.
We affirm. Contrary to defendant's contention, the plea colloquy demonstrates that heknowingly, voluntarily and intelligently waived his right to appeal. At the outset of the pleaproceeding, County Court advised defendant that the waiver of the right to appeal was acondition of the plea agreement, and the record demonstrates that defendant agreed to the termsof the plea bargain (see People vPeryea, 169 AD3d 1120, 1120 [2019]; People v Cherry, 166 AD3d 1220, 1221 [2018]; People v Koontz, 166 AD3d 1215,1216 [2018], lv denied 32 NY3d 1206 [2019]). County Court explained to defendant that,although he would ordinarily retain the right to appeal his conviction and sentence, the pleaagreement required that he waive his right to appeal, and the court listed a "few reviewable issues[that] survive a valid appeal waiver" (People v Lopez, 6 NY3d 248, 256 [2006]; see People v Lago, 168 AD3d1281, 1281 [2019]; People vCarter, 166 AD3d 1212, 1213 [2018]). In addition, defendant executed in open court awritten appeal waiver stating that he was voluntarily, knowingly and intelligently waiving hisright to appeal, which was beyond those trial-related rights that he was giving up by entering aguilty plea, and that he was relinquishing his right to appeal all matters relating to the convictionand sentence (see People v Moore,167 AD3d 1158, 1159 [2018]; People v Williams, 167 AD3d 1084, 1085 [2018], lv denied32 NY3d 1211 [2019]; People vMcClain, 165 AD3d 1345, 1345 [2018]). Although County Court never confirmed withdefendant that he read and understood the written appeal waiver that he executed in open court,defendant acknowledged during the plea colloquy that defense counsel had reviewed anddiscussed the written appeal waiver with him (see People v Nichols, 155 AD3d 1186, 1187 [2017]; People v Empey, 144 AD3d 1201,1203 [2016], lv denied 28 NY3d 1144 [2017]). Accordingly, defendant's argument thathis sentence is harsh and excessive is precluded by his valid waiver of the right to appeal (seePeople v Lopez, 6 NY3d at 256; People v Freeman, 169 AD3d 1115, 1116 [2019]; People v Watkins, 166 AD3d1239, 1240 [2018]).
Clark, J.P., Mulvey, Devine, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:In 2014, defendant, following ajury trial, was convicted of six of the counts specified in the indictment; however, on appeal, thisCourt reversed the judgment of conviction and remitted for a new trial (141 AD3d at 859-861).