| People v Bowden |
| 2019 NY Slip Op 07961 [177 AD3d 1037] |
| November 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Karon Bowden, Appellant. |
Catherine A. Barber, Guilderland, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Devine, J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered May 24, 2017, convicting defendant upon his plea of guilty of the crime ofmurder in the second degree.
In July 2016, defendant was charged in a two-count indictment with murder in thesecond degree and criminal possession of a weapon in the second degree. In fullsatisfaction thereof, defendant pleaded guilty to murder in the second degree and waivedhis right to appeal, both orally and in writing. In exchange for his guilty plea, the Peopleindicated that their recommended sentence would be that defendant receive a prison termof at least 20 years to life. County Court stated that it would accept the plea agreementand offered no sentencing commitment beyond that it would not impose the maximumsentence allowed by law, to which defendant indicated his understanding prior topleading guilty. Consistent with the foregoing, County Court thereafter sentenceddefendant to a prison term of 24 years to life, and defendant appeals.
We affirm. The record reflects that, during the plea proceeding, defendant wasadvised that the waiver of the right to appeal was a condition of the plea agreement, anddefendant acknowledged his understanding of the plea agreement and its terms (see People v Snare, 174 AD3d1222, 1222 [2019]; Peoplev Cherry, 166 AD3d 1220, 1221 [2018]). County Court then advised defendantthat his right to appeal was "completely separate" from the trial-related rightsautomatically forfeited by his guilty plea, and defendant acknowledged that heunderstood the nature of the waiver and that he was voluntarily waiving his right toappeal (see People vBradshaw, 18 NY3d 257, 264 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Boyette, 175 AD3d751, 752 [2019]; People vWomack, 172 AD3d 1819, 1820 [2019], lv denied 33 NY3d 1110[2019]). Defendant, after consulting with counsel, also signed a written waiver of appealin open court—which adequately described the nature and scope of the appellaterights being waived and stated, among other things, that defendant was waiving his rightto appeal in consideration of the plea agreement—and County Court confirmedthat he had no questions about the written waiver (see People v Thacker, 173 AD3d 1360, 1361 [2019], lvdenied 34 NY3d 938 [2019]; People v Greene, 171 AD3d 1407, 1408 [2019]; People v Stebbins, 171 AD3d1395, 1396 [2019], lv denied 33 NY3d 1108 [2019]). Accordingly, we findthat defendant's combined oral and written waiver of appeal was knowing, intelligent andvoluntary (see People v Lopez, 6 NY3d at 256; People v Cannelli, 173 AD3d1567, 1568 [2019]; People v Thacker, 173 AD3d at 1360-1361). As a resultof defendant's valid waiver of appeal, he is precluded from contesting County Court'sMolineux rulings (seePeople v Guyette, 121 AD3d 1430, 1431 [2014], lv denied 27 NY3d 998[2016]; People v Wolz, 112AD3d 1150, 1152 [2013], lv denied 23 NY3d 1026 [2014]). Moreover,"defendant's entry of a valid guilty plea forfeited [his] right to challenge any aspect ofCounty Court's evidentiary Molineux ruling" (People v Atwood, 9 AD3d 512, 513 [2004]; see People v Pierre, 8 AD3d904, 906 [2004], lv denied 3 NY3d 710 [2004]; People v Barrier, 7 AD3d885, 886 [2004], lv denied 3 NY3d 670 [2004]).
Next, defendant contends that the appeal waiver does not preclude his challenge tothe severity of the sentence because he was not specifically advised at the time of his pleaof the maximum sentence that he could potentially receive. Although County Courtadvised and promised defendant that he would "not receive the maximum [sentence] inreturn for [his] plea of guilty," the court failed to advise defendant of that maximumsentence or what sentence defendant could receive. Inasmuch as defendant was "notadvised at the time of the plea of the maximum sentence [that] he . . . couldface, the appeal waiver does not encompass the right to challenge the sentence as harshand excessive" (People v Espino, 279 AD2d 798, 800 and n [2001]; see People v Long, 117 AD3d1326, 1327 [2014], lv denied 24 NY3d 1003 [2014]; People v Forkey, 72 AD3d1209, 1211 [2010]; Peoplev Tesar, 65 AD3d 716, 717 [2009]; compare People v Lococo, 92 NY2d825, 827 [1998]). Turning to the merits, we do not find that the challenged sentence washarsh and excessive. The sentence imposed was, consistent with the plea agreement, lessthan the possible maximum (see Penal Law § 70.00 [2] [a]; [3] [a][i]). Further, the sentence is justified by defendant's senseless act of domestic violencecausing the death of his former domestic partner. Therefore, we find no extraordinarycircumstances or abuse of discretion warranting a reduction of the sentence in the interestof justice (see People vBurkett, 101 AD3d 1468, 1473 [2012], lv denied 20 NY3d 1096 [2013];People v Centorani, 294 AD2d 613, 614 [2002]; People v Robinson, 262AD2d 795, 795 [1999], lv denied 93 NY2d 1045 [1999]).
Garry, P.J., Lynch and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.