| People v Bayne |
| 2019 NY Slip Op 06687 [175 AD3d 1722] |
| September 19, 2019 |
| Appellate Division, Third Department |
[*1](September 19, 2019)
| The People of the State of New York,Respondent, v Alexander Bayne, Appellant. |
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), forappellant.
Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), forrespondent.
Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), renderedNovember 16, 2016, convicting defendant upon his pleas of guilty of the crimes of criminal saleof a controlled substance in the third degree and attempted assault in the second degree.
Defendant was charged in an indictment with various drug-related crimes. While he was injail pending the disposition of these charges, he was involved in an altercation with a correctionofficer and was charged in a superior court information with attempted assault in the seconddegree. In satisfaction of the indictment, defendant pleaded guilty to criminal sale of a controlledsubstance in the third degree and was required to waive his right to appeal. Under the terms ofthe plea agreement, defendant was permitted to choose whether to be sentenced to a determinateprison term of nine years followed by three years of postrelease supervision or to allow CountyCourt to select an appropriate determinate prison term of between 7 and 10 years followed bythree years of postrelease supervision. After defendant admitted that he was a second felonyoffender, County Court adjourned the proceedings for sentencing.
The proceedings subsequently resumed on both accusatory instruments, at which timedefendant pleaded guilty to attempted assault in the second degree as charged in the superiorcourt information. He was again required to waive his right to appeal. Under the terms of thisplea agreement, defendant was to be sentenced as a second felony offender to 2 to 4 years inprison, to run concurrently with the sentence imposed upon his conviction of criminal sale of acontrolled substance in the third degree. Defendant elected to have County Court select theappropriate sentence for his criminal sale conviction, and the court sentenced him to8
Defendant challenges the severity of the sentence and contends that he is not precluded fromdoing so because his appeal waivers were invalid. We disagree. The record demonstrates that, inconnection with both of his guilty pleas, defendant "knowingly, voluntarily and intelligentlywaived his right to appeal—both orally and in writing—after he expresslyacknowledged that he understood the separate and distinct nature of the waiver of the right toappeal from those rights automatically forfeited by the plea and the consequences thereof" (People v Pantoja, 172 AD3d 1826,1826 [2019]; see People v King, 172AD3d 1763, 1763-1764 [2019]). Moreover, defendant executed the written waivers in opencourt after conferring with counsel and indicated that he understood their ramifications (see People v Haggray, 172 AD3d1825, 1825 [2019], lv denied 34 NY3d 932 [2019]; People vKing, 172 AD3d at 1764). Accordingly, given that the appeal waivers were valid, defendantis foreclosed from claiming that the sentence is harsh and excessive (see People v Thacker, 173 AD3d1360, 1361 [2019], lv denied 34 NY3d 938 [2019]; People vKing, 172 AD3d at 1764).
Egan Jr., J.P., Lynch, Clark, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.