| People v Cannelli |
| 2019 NY Slip Op 05234 [173 AD3d 1567] |
| June 27, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Laurie M. Cannelli, Appellant. |
Lisa A. Burgess, Indian Lake, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Appeal from a judgment of the County Court of Saratoga County (Murphy, J.), renderedAugust 21, 2017, convicting defendant upon her plea of guilty of the crimes of criminalpossession of a controlled substance in the fourth degree and burglary in the second degree.
In February 2017, defendant was charged in an indictment with criminal possession of acontrolled substance in the third degree (two counts) and driving while ability impaired by drugs.Following her arraignment on that indictment, defendant was charged in another indictment withburglary in the first degree (five counts), attempted robbery in the first degree, criminalpossession of a weapon in the third degree (two counts), assault in the second degree (fivecounts), menacing in the second degree (two counts), criminal mischief in the third degree,kidnapping in the second degree and criminal sale of a controlled substance in the third degree(two counts). Pursuant to a negotiated plea agreement, and in full satisfaction of bothindictments, defendant pleaded guilty to the reduced charges of criminal possession of acontrolled substance in the fourth degree in satisfaction of the first indictment and burglary in thesecond degree in satisfaction of the second indictment and waived her right to appeal, both orallyand in writing. Consistent with the terms of the plea agreement, County Court imposed upondefendant, as a second felony offender, a prison sentence of 12 years, to be followed by five yearsof postrelease supervision, for her burglary conviction and to a lesser concurrent sentence on herremaining conviction. Defendant now appeals, contending that her appeal waivers is invalid andthat her agreed-upon sentence is harsh and excessive.
We affirm. Contrary to her contention, defendant validly waived her right to appeal. Initially,the record reflects that defendant was advised at the outset of the plea proceeding that the waiverof her right to appeal was a condition of the plea agreement, and defendant indicated that sheaccepted this condition (see People vVanalst, 171 AD3d 1349, 1350 [2019]; People v Cherry, 166 AD3d 1220, 1221 [2018]; People v Charles, 163 AD3d 1362,1362 [2018], lv denied 32 NY3d 1063 [2018]). During the plea colloquy, County Courtdistinguished the right to appeal as separate and distinct from the other trial-related rightsautomatically forfeited by a guilty plea (see People v Lopez, 6 NY3d 248, 256-257 [2006]; People v Tucker, 164 AD3d 948,949 [2018]; People v Rogers, 162AD3d 1410, 1410 [2018]). Defendant then signed, for each indictment, separate writtenappeal waivers in open court after conferring with counsel and assuring the court that sheunderstood the written waivers, in which defendant indicated that she understood the separateand distinct nature of the right to appeal and that she was giving up her right to appeal, amongother things, the sentence imposed in consideration of the plea agreement (see People v Johnson, 170 AD3d1274, 1275 [2019]; People vWatkins, 166 AD3d 1239, 1240 [2018], lv denied 33 NY3d 955 [2019]; People v Dubois, 150 AD3d 1562,1563 [2017]). Accordingly, we find that defendant's combined oral and written waivers of appealwere knowing, intelligent and voluntary (see People v Cherry, 166 AD3d at 1221; People v Turner, 158 AD3d 892,892 [2018]). Given the valid appeal waivers, review of defendant's claim that the agreed-uponsentence imposed was harsh and excessive is precluded (see People v Pacherille, 25 NY3d 1021, 1023 [2015]; People vLopez, 6 NY3d at 256; People vDouglas, 168 AD3d 1285, 1286 [2019]; People v Bridge, 166 AD3d 1168, 1169 [2018], lv denied32 NY3d 1124 [2018]).
Egan Jr., J.P., Lynch, Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.