| People v Ballester-Perez |
| 2021 NY Slip Op 03870 [195 AD3d 1234] |
| June 17, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Gilberto Ballester-Perez, Appellant. |
Theodore J. Stein, Woodstock, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Appeal from a judgment of the County Court of Ulster County (Williams, J.), renderedDecember 8, 2017, convicting defendant upon his plea of guilty of the crime of course of sexualconduct against a child in the second degree.
In full satisfaction of a four-count indictment, defendant pleaded guilty to the reduced chargeof course of sexual conduct against a child in the second degree and purportedly waived his rightto appeal. Consistent with the terms of the plea agreement, County Court sentenced defendant toa prison term of seven years, to be followed by 10 years of postrelease supervision. Defendantappeals.
Contrary to defendant's contention, we find that defendant's waiver of appeal was knowing,voluntary and intelligent (see People vThomas, 34 NY3d 545, 559-564 [2019]; People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d 248, 256[2006]). The record reflects that defendant was advised that a waiver of appeal was a condition ofthe plea agreement and that he understood the terms of the plea agreement. "County Courtcarefully explained the right to appeal and the appellate process and made clear that the waiver ofappeal was a separate, additional requirement of the plea agreement, which was distinct from thetrial-related rights that he had been advised were automatically forfeited by his guilty plea" (People v Thomas, 190 AD3d1157, 1158 [2021]; see People v Lopez, 6 NY3d at 256). Defendant also signed awritten waiver of appeal in open court and assured the court that he had reviewed it with counseland that he understood its terms and had no questions about the rights that he was giving up. Thewritten waiver stated that it applied "to all legal issues that can be waived under the law" andprovided examples of the types of issues that would be precluded. "[A]lthough the allocution andwritten waiver did not expressly state that certain appellate issues survive an appeal waiver, weare satisfied that 'the counseled defendant understood the distinction that some appellate reviewsurvived' " (People v Thomas, 190 AD3d at 1158, quoting People vThomas, 34 NY3d at 561; accordPeople v Hernandez, 188 AD3d 1357, 1357 [2020], lv denied 36 NY3d 1057[2021]; see People v Martin, 179AD3d 1385, 1386 [2020]). Inasmuch as "there is no mandatory litany that must be used inorder to obtain a valid waiver of appellate rights," we are satisfied from this record thatdefendant's waiver was knowing, intelligent and voluntary (People v Johnson, 14 NY3d 483, 486 [2010]; see People vThomas, 34 NY3d at 564; People vDaniels, 193 AD3d 1179, 1179 [2021]; People v Thomas, 190 AD3d at1158-1159). Defendant's challenge to the sentence as harsh and excessive is therefore foreclosedby his valid appeal waiver (see People v Lopez, 6 NY3d at 256; People v Budnack, 155 AD3d1658, 1658 [2017], lv denied 30 NY3d 1114 [2018]; People v Vasquez, 137 AD3d1636, 1637 [2016], lv denied 27 NY3d 1076 [2016]).
Egan Jr., J.P., Lynch, Pritzker, Reynolds [*2]Fitzgerald andColangelo, JJ., concur. Ordered that the judgment is affirmed.