| People v O'Neill |
| 2019 NY Slip Op 04055 [172 AD3d 1778] |
| May 23, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Paul L. O'Neill, Appellant. |
John A. Cirando, Syracuse, for appellant.
Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Cortland County (Ames, J.),rendered January 12, 2016, convicting defendant upon his plea of guilty of the crimes of courseof sexual conduct against a child in the first degree and use of a child in a sexualperformance.
Defendant waived indictment, agreed to plead guilty to a superior court information charginghim with use of a child in a sexual performance and course of sexual conduct against a child inthe first degree and, consistent with the terms of that plea agreement, was sentenced to anaggregate prison term of 15 years followed by 20 years of postrelease supervision; upondefendant's appeal, this Court affirmed (People v O'Neill, 116 AD3d 1240 [2014]). Thereafter, defendantmoved for a writ of error coram nobis alleging that appellate counsel was ineffective for failingto challenge the superior court information as jurisdictionally defective; in response, this Courtgranted the motion, reinstated the appeal, vacated the plea and remitted the matter for furtherproceedings (People v O'Neill, 129AD3d 1382 [2015]).
Following this Court's remittal, defendant again waived indictment and ultimately agreed toplead guilty to a superior court information with the understanding that he would be sentenced toa prison term of 10 years—followed by 20 years of postrelease supervision—uponhis conviction of course of sexual conduct against a child in the first degree and to a prison termof 5 to 15 years upon his conviction of use of a child in a sexual performance, said sentences torun concurrently. The plea agreement also required defendant to waive his right to appeal.Defendant pleaded guilty in conformity with the terms of the plea agreement, and County Courtimposed the contemplated concurrent sentences. This appeal ensued.
We affirm. Although both the oral and written explanation of the waiver of appeal couldhave been expressed with greater clarity, defendant was aware that the waiver of appeal was partof his plea agreement (see People vJawan, 165 AD3d 1350, 1350 [2018], lv denied 32 NY3d 1173 [2019]; People v Larose, 160 AD3d 1215,1216 [2018], lv denied 31 NY3d 1150 [2018]), he executed a written waiver in opencourt, wherein he agreed to waive his right to appeal his conviction and sentence, and, inresponse to County Court's inquiries, he indicated that he had read the written waiver, understoodits terms, had discussed the waiver with counsel and had no questions relative thereto (see People v Horton, 167 AD3d1166, 1167 [2018]; People v Jawan, 165 AD3d at 1350). Under these circumstances,we find that defendant's waiver of the right to appeal was knowing, intelligent and voluntary (see People v Adams, 165 AD3d1343, 1344 [2018]; People vWhite, 156 AD3d 1249, 1249-1250 [2017], lv denied 31 NY3d 988 [2018]).Accordingly, defendant's claim that the agreed-upon sentences imposed are harsh and excessiveis precluded (see People v Taft, 169AD3d 1266, 1267 [2019]; People vChapman, 168 AD3d 1315, 1316 [2019]).
Defendant's challenge to the factual sufficiency of his plea is precluded by his valid appealwaiver (see People v Peryea, 169AD3d 1120, 1121 [2019], lv denied 33 NY3d 980 [2019]; People vLetohic, 166 AD3d 1223, 1223 [2018], lv denied 32 NY3d 1174 [2019]), and hisassertion that his plea was involuntary is unpreserved for our review absent evidence of anappropriate postallocution motion (seePeople v Johnson, 170 AD3d 1274, 1275 [2019]; People v Castro, 170 AD3d 1286, 1288 [2019]). Further, as therecord does not reflect that defendant made any statements that were inconsistent with his guilt,negated an element of the charged crimes or otherwise called into question the voluntariness ofhis plea, the narrow exception to the preservation requirement was not triggered (see People v Freeman, 169 AD3d1115, 1116 [2019]; People vTucker, 164 AD3d 948, 950 [2018]). In any event, any ambiguity regarding the neteffect of the concurrent sentences to be imposed was clarified during the plea colloquy. Finally,although defendant now contends that he was not apprised of the possibility of civil confinementuntil the conclusion of the sentencing proceeding, this claim, which contradicts defendant'son-the-record representations to County Court, is unpreserved (see People v Madden, 112 AD3d740, 741 [2013]). Were we to address this issue, we would note that the possibility of civilconfinement is a collateral consequence of defendant's guilty plea and, as such, County Court'sfailure to address this issue prior to accepting defendant's plea would not render such pleainvoluntary under the circumstances presented here (see People v Harnett, 16 NY3d 200, 205-206 [2011]; People vMadden, 112 AD3d at 741). Defendant's remaining arguments, to the extent not specificallyaddressed, have been examined and found to be lacking in merit.
Garry, P.J., Aarons, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.