| People v Anderson |
| 2019 NY Slip Op 07956 [177 AD3d 1031] |
| November 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Anthony G. Anderson, Appellant. |
Carolyn B. George, Albany, for appellant.
P. David Soares, District Attorney, Albany (Jonathan P. Catania of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the Supreme Court (McDonough, J.), renderedJune 20, 2017 in Albany County, convicting defendant upon his plea of guilty of thecrime of criminal sale of a controlled substance in the third degree.
Defendant was charged in a 14-count indictment with variouscrimes—primarily pertaining to his possession and sale of controlled substancesbetween April 2015 and June 2016. In full satisfaction of the indictment and a pendingviolation of probation charge, defendant pleaded guilty to one count of criminal sale of acontrolled substance in the third degree and waived his right to appeal. Under the termsof the agreement, Supreme Court agreed to impose a determinate prison sentence of noless than 8 years and no more than 12 years, to be followed by three years of postreleasesupervision. Supreme Court also advised defendant that if, among other things, he didnot show up on time for sentencing, it would take that into consideration when imposingthe sentence. Although the original date of sentencing was adjourned to providedefendant an opportunity to receive certain medical treatment, defendant failed to showup for sentencing at the adjourned-to date and a bench warrant was issued. Upondefendant's return, Supreme Court sentenced him to 12 years in prison, to be followed bythree years of postrelease supervision. Defendant appeals.
We affirm. Initially, the record reflects that defendant's combined oral and writtenwaiver of the right to appeal was knowing, intelligent and voluntary. Defendant wasadvised at the outset of the plea colloquy that waiving the right to appeal was a conditionof the plea agreement (seePeople v Moore, 167 AD3d 1158, 1159 [2018], lv denied 33 NY3d 951[2019]; People v Koontz,166 AD3d 1215, 1216 [2018], lv denied 32 NY3d 1206 [2019]). SupremeCourt distinguished the right to appeal from the trial-related rights automatically forfeitedby a guilty plea, ensured that defendant understood the right and that, prior to signing thewritten waiver, defendant had discussed it with counsel. Under these circumstances, wefind that defendant validly waived the right to appeal (see People v Lopez, 6 NY3d248, 256 [2006]; People vVanalst, 171 AD3d 1349, 1350 [2019], lv denied 33 NY3d 1109[2019]). Contrary to defendant's contention, the knowing, intelligent and voluntarywaiver was not rendered invalid by his refusal to reaffirm the waiver at sentencing(see People v Young, 253 AD2d 982, 982-983 [1998], lv denied 92NY2d 1055 [1999]). Given the valid appeal waiver, defendant's claim that the imposedsentence is harsh and excessive is precluded (see People v Pantoja, 172 AD3d 1826, 1826 [2019]; People v Williams, 6 AD3d746, 748 [2004], lv denied 3 NY3d 650 [2004]).
We also reject defendant's contention that Supreme Court erred in imposing what hecharacterizes as an "enhanced" sentence without providing him an opportunity towithdraw his plea. Although "[a] sentencing court may not impose an enhanced sentenceunless it has informed the defendant of specific conditions that the defendant must abideby or risk such enhancement, or give the defendant an opportunity to withdraw his or herplea before the enhanced sentence is imposed" (People v Tole, 119 AD3d 982, 984 [2014]; accord People v Hunter, 173AD3d 1249, 1250 [2019], lv denied 34 NY3d 933 [2019]), the recordreflects that the sentence imposed here was within the agreed-upon range in the pleaagreement. Because an enhanced sentence was not imposed, Supreme Court had noobligation to provide defendant with an opportunity to withdraw his plea prior tosentencing him.
Garry, P.J., Mulvey and Devine, JJ., concur. Ordered that the judgment isaffirmed.