| People v Eaton |
| 2020 NY Slip Op 02500 [182 AD3d 922] |
| April 30, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Daryl B. Eaton, Appellant. |
Rural Law Center of New York, Castleton (Keith F. Schockmel of counsel), forappellant.
Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Cortland County(Campbell, J.), rendered October 19, 2017, convicting defendant upon his plea of guiltyof the crime of attempted burglary in the second degree.
Defendant waived indictment and agreed to be prosecuted pursuant to a superiorcourt information (hereinafter SCI) charging him with one count of attempted burglary inthe second degree. In satisfaction of the SCI and other pending charges, defendantpleaded guilty to the charged crime with the understanding that he would be sentenced toa prison term of four years followed by three years of postrelease supervision. The pleaagreement also required defendant to waive his right to appeal. Following defendant'splea, the promised prison term was imposed, and this appeal ensued.
We affirm. Preliminarily, to the extent that defendant's brief may be read aschallenging the validity of the waiver of the right to appeal, we find this argument to beunpersuasive. County Court sufficiently explained the nature of the waiver of the right toappeal and did not "impermissibly lump" defendant's appellate rights into the trial-relatedrights that defendant was forfeiting by virtue of his guilty plea (People v Womack, 172 AD3d1819, 1820 [2019], lv denied 33 NY3d 1110 [2019]; see People v Breithaupt, 171AD3d 1311, 1312 [2019], lv denied 34 NY3d 979 [2019]). Defendant, whohad been advised that the waiver was a condition of the plea agreement, indicated that heunderstood the court's oral explanation of the waiver (see People v Acevedo, 179 AD3d 1397, 1398 [2020]) and,after conferring with counsel, defendant signed a detailed written waiver in open courtand again affirmed his understanding thereof (see People v Harrison, 176 AD3d 1262, 1263 [2019], lvdenied 34 NY3d 1016 [2019]). Under these circumstances, and as we discern noother infirmities in the waiver (compare People v Thomas, 34 NY3d545 [2019]; People v Barrales, 179 AD3d 1313 [2020]), we find thatdefendant's waiver of the right to appeal was knowing, intelligent and voluntary. In lightof the valid appeal waiver, defendant's challenge to the perceived severity of theagreed-upon sentence is precluded (see People v Salmon, 179 AD3d 1404, 1404-1405 [2020];People v Sabin, 179 AD3d1401, 1402 [2020]).
Defendant's primary contention—that the waiver of indictment is invalid andthe SCI is jurisdictionally defective due to the People's failure to set forth theapproximate time of the charged crime—is governed by the Court of Appeals'holding in People v Lang (34 NY3d 545, 568-570 [2019]), as well as our recent decisions in People v Shindler (179 AD3d1306, 1307 [2020]) and People v Elric YY. (179 AD3d 1304, 1304-1305 [2020]).Simply put, given that the waiver of indictment and SCI at issue here afforded defendantadequate notice of the date and location of the charged crime, and as the omission of theapproximate time of the offense from those documents constituted a nonjurisdictionaldefect (see People v Lang, 34 NY3d at 568-570) to which defendant did not object at a point in time when County Courtcould have addressed the asserted defect, "defendant's present challenge was forfeited byhis guilty plea" (People v Shindler, 179 AD3d at 1307; see People v ElricYY., 179 AD3d at 1305).
Lynch, J.P., Mulvey, Aarons and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.