| People v Provost |
| 2020 NY Slip Op 01674 [181 AD3d 1059] |
| March 12, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Tyler E. Provost, Appellant. |
Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), forappellant.
Gary M. Pasqua, District Attorney, Canton (Alexander A. V. Nichols of counsel), forrespondent.
Appeal from a judgment of the County Court of St. Lawrence County (Champagne,J.), rendered April 24, 2017, convicting defendant upon his plea of guilty of the crime ofrape in the second degree.
Following his sexual encounter with the then-14-year-old victim, defendant wasindicted and charged with one count of rape in the first degree and one count of rape inthe second degree. In full satisfaction of that indictment and other pending charges,defendant agreed to plead guilty to rape in the second degree in exchange for a prisonterm of seven years followed by 15 years of postrelease supervision. The plea agreementalso required defendant to waive his right to appeal. Defendant thereafter pleaded guiltyin conformity with the plea agreement, and County Court sentenced defendant as asecond felony offender to the contemplated term of imprisonment. This appeal bydefendant followed.
We affirm. County Court sufficiently explained the nature of the waiver of the rightto appeal, and defendant, in turn, expressed his understanding of the appellate rightsbeing waived and his willingness to relinquish those rights (see People v Boyette, 175AD3d 751, 752 [2019], lv denied 34 NY3d 979 [2019]; People v Walker, 166 AD3d1393, 1393-1394 [2018]). Although the court's oral colloquy did not include thewords "separate and distinct," County Court "was not required to engage in any particularcolloquy or utter any specific words in order to ensure that defendant's waiver of the rightto appeal was knowing, intelligent and voluntary" (People v Douglas, 168 AD3d 1285, 1285 [2019]), and thewritten waiver executed by defendant in open court clearly apprised defendant that his"right to appeal [was] separate and distinct from those rights . . .automatically forfeit[ed] by [his] plea of guilty" (see People v Gamble, 177 AD3d 1042, 1042 [2019], lvdenied 34 NY3d 1128 [2020]; People v Boyette, 175 AD3d at 752). Inresponse to County Court's questioning, defendant confirmed that his signature on thewritten waiver evidenced his understanding of that document and assured the court thathe had been afforded sufficient time to confer with counsel (see People v Lago, 168 AD3d1281, 1281 [2019]; Peoplev Gilliam, 162 AD3d 1413, 1414 [2018], lv denied 32 NY3d 1064[2018]). Under these circumstances, and as we discern no other infirmity in the appealwaiver (compare People v Thomas, 34 NY3d 545 [2019]; People vBarrales, 179 AD3d 1313 [2020]), we find that defendant's combined oral andwritten waiver of the right to appeal was knowing, intelligent and voluntary (seePeople v Boyette, 175 AD3d at 752; People v Walker, 166 AD3d at 1394). Inlight of the valid appeal waiver, defendant is precluded from challenging theagreed-upon sentence as harsh and excessive (see People v Gamble, 177 AD3d at1043; People v Breithaupt,171 AD3d 1311, 1312 [2019], lv denied 34 NY3d 979 [2019]).
Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.Ordered that the judgment is affirmed.