| People v Boyette |
| 2019 NY Slip Op 06023 [175 AD3d 751] |
| August 1, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jacqueline Boyette, Appellant. |
Carolyn B. George, Albany, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Kehm of counsel), forrespondent.
Appeal from a judgment of the County Court of Clinton County (Lawliss, J.), renderedAugust 22, 2017, convicting defendant upon her plea of guilty of the crime of criminal sale of acontrolled substance in the third degree (two counts).
In satisfaction of a five-count indictment, defendant pleaded guilty to two counts of criminalsale of a controlled substance in the third degree and waived her right to appeal, both orally andin writing. County Court sentenced defendant, a second felony offender, to the agreed-uponconcurrent prison terms of five years, followed by three years of postrelease supervision.Defendant appeals.
We are unpersuaded by defendant's contention that the waiver of the right to appeal wasinvalid. After defendant pleaded guilty to the crimes, County Court explained that "the next partof the [plea] agreement" required that defendant waive her right to appeal, then provided ageneral explanation of the right to appeal, which defendant acknowledged she understood.Defendant proceeded to confer with counsel and execute a written appeal waiver, whichspecifically noted that the right to appeal is "separate [and] distinct" from those rightsautomatically forfeited by the guilty plea, and she confirmed to the court that she had read andunderstood the appeal waiver. Although County Court did not use the words "separate anddistinct" in its colloquy, "a trial court need not engage in any particular litany or catechism insatisfying itself that a defendant has entered a knowing, intelligent and voluntary appeal waiver"(People v Bradshaw, 18 NY3d257, 265 [2011] [internal quotation marks and citation omitted]; see People v Sanders, 25 NY3d337, 341 [2015]; People vDouglas, 168 AD3d 1285, 1285 [2019]). We are satisfied that the language employedprovided a sufficient basis for defendant to understand the separate and distinct nature of theright to appeal and did not impermissibly lump that right with those automatically forfeited byher guilty plea (see People vWomack, 172 AD3d 1819, 1820 [2019]; People v Douglas, 168 AD3d at 1286;People v Walker, 166 AD3d1393, 1394 [2018]). As such, we find that defendant's combined oral and written appealwaiver was knowingly, voluntarily and intelligently entered. Given the valid appeal waiver,defendant's contention that County Court should have sentenced her to judicial diversion isprecluded (see People v Royal, 161AD3d 1217, 1218 [2018], lv denied 32 NY3d 1007 [2018]; People v Bonds, 148 AD3d 1304,1305 [2017], lv denied 29 NY3d 1076 [2017]).
Garry, P.J., Lynch, Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.