| People v Gamble |
| 2019 NY Slip Op 07964 [177 AD3d 1042] |
| November 7, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Lamont S. Gamble Jr., Appellant. |
Rebecca L. Fox, Plattsburgh, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Kehm of counsel), forrespondent.
Lynch, J.P. Appeals (1) from a judgment of the County Court of Clinton County(Lawliss, J.), rendered October 17, 2017, convicting defendant upon his plea of guilty ofthe crime of criminal sale of a controlled substance in the third degree, and (2) from ajudgment of said court, rendered February 28, 2018 in Clinton County, whichresentenced defendant.
In satisfaction of a two-count indictment, defendant pleaded guilty to criminal sale ofa controlled substance in the third degree and waived his right to appeal. In accord withthe plea agreement, he was sentenced to four years in prison followed by three years ofpostrelease supervision. After realizing that the maximum term of postrelease supervisionthat could be imposed was two years and obtaining the parties' consent to themodification of the sentence, County Court resentenced defendant to four years in prisonfollowed by two years of postrelease supervision. Defendant appeals.
Initially, we find no merit to defendant's challenge to the validity of his appealwaiver. Defendant was advised that the appeal waiver was a condition of the pleaagreement and, after he entered his plea, County Court described the consequences ofsuch waiver and defendant indicated that he understood them. Then, in open court andafter conferring with counsel, defendant executed a written appeal waiver thatspecifically explained that the right to appeal was separate and distinct from the othertrial-related rights that he was forfeiting. After signing the waiver, defendant told CountyCourt that he understood it and did not have any questions. Under these circumstances,we find that defendant knowingly, voluntarily and intelligently waived his right to appeal(see People v Boyette, 175AD3d 751, 752 [2019]; People v Collins, 53 AD3d 932, 933 [2008], lvdenied 11 NY3d 831 [2008]). Consequently, his challenge to the severity of thesentence is precluded (seePeople v Franklin, 164 AD3d 1547, 1548 [2018], lv denied 32 NY3d1171 [2019]; People vDaniels, 139 AD3d 1256, 1257 [2016], lv denied 28 NY3d 1183[2017]).
Defendant further contends that his counsel was ineffective because he failed toaggressively advocate for a more favorable sentence—namely, shockincarceration. This claim does not implicate the voluntariness of defendant's guilty pleaand is foreclosed thereby (seePeople v Williams, 145 AD3d 1188, 1191 [2016], lv denied 29 NY3d1002 [2017]; People vWatkins, 121 AD3d 1425, 1427 [2014], lv denied 24 NY3d 1124[2015]), as well as by defendant's valid waiver of the right to appeal (see People v Stebbins, 171AD3d 1395, 1396 [2019], lv denied 33 NY3d 1108 [2019]; People v Gumbs, 169 AD3d1119, 1120 [2019], lv denied 33 NY3d 1105 [2019]).
Clark, Devine and Pritzker, JJ., concur. Ordered that the judgments are affirmed.