| People v Howell |
| 2019 NY Slip Op 08735 [178 AD3d 1148] |
| December 5, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Adrian Howell, Appellant. |
Del Atwell, East Hampton, for appellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered May25, 2017, convicting defendant upon his plea of guilty of the crime of promoting prisoncontraband in the first degree.
In full satisfaction of a multicount indictment, defendant agreed to plead guilty to one countof promoting prison contraband in the first degree with the understanding that he would besentenced to a prison term of 3 to 6 years—said sentence to be served consecutively to onethat he then was serving. The plea agreement also required defendant to waive his right to appeal.Defendant pleaded guilty in conformity with the plea agreement and thereafter was sentenced asa second felony offender to the contemplated term of imprisonment. This appeal ensued.
We affirm. To the extent that defendant challenges the validity of his waiver of the right toappeal, we find that defendant knowingly, intelligently and voluntarily waived such right. CountyCourt explained the separate and distinct nature of the waiver and, in response to County Court'sinquiry, defendant confirmed his understanding thereof (see People v Hunt, 176 AD3d 1253, 1253 [2019]; People v Fedderman, 170 AD3d1279, 1280 [2019]; People vTaft, 169 AD3d 1266, 1266-1267 [2019], lv denied 33 NY3d 1074 [2019]).Additionally, defendant executed a detailed written waiver in open court, acknowledged that hehad reviewed the waiver with counsel and indicated that he had no questions relative thereto (see People v Stebbins, 171 AD3d1395, 1396 [2019], lv denied 33 NY3d 1108 [2019]; People v Ward, 171 AD3d 1312,1313-1314 [2019], lv denied 33 NY3d 1074 [2019]; People v King, 163 AD3d 1352, 1352 [2018], lv denied 32NY3d 1206 [2019]). Under these circumstances, we find that defendant's waiver of the right toappeal was valid. In light of the valid appeal waiver, defendant's challenge to the severity of thesentence imposed is precluded (seePeople v Bayne, 175 AD3d 1722, 1723 [2019]; People v Greene, 171 AD3d 1407, 1408 [2019]).
Defendant's remaining argument—that County Court failed to follow the proceduresoutlined in CPL 400.21 when sentencing defendant as a second felony offender—survivesdefendant's valid appeal waiver but is unpreserved for our review due to defendant's failure toraise any objection in this regard at the time of sentencing (see People v Quinones, 162 AD3d 1402, 1402-1403 [2018]; People v Stewart, 156 AD3d 1059,1059 [2017]; People v Hartfield,151 AD3d 1116, 1118 [2017], lv denied 29 NY3d 1127 [2017]). Were we to addressthis issue, we would find it to be lacking in merit. The People provided a predicate felonystatement prior to the imposition of sentence (see CPL 400.21 [2]), and defendantthereafter declined to controvert the contents thereof (see People v Quinones, 162 AD3dat 1403). Under these circumstances, we would find that there was substantial compliance withthe requirements of CPL 400.21.
Garry, P.J., Lynch, Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.