| People v Soto |
| 2021 NY Slip Op 06116 [199 AD3d 1128] |
| November 10, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jose Soto, Appellant. |
John Ferrara, Monticello, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered June 11, 2019, convicting defendant upon his plea of guilty of the crime of criminal saleof a controlled substance in the third degree.
Defendant was indicted on two counts of criminal sale of a controlled substance in the thirddegree stemming from his sale of drugs to an undercover informant. Following a conference inchambers, the People set forth on the record the terms of the proposed plea deal, which defendantstated he wished to accept. Thereafter, in accordance with the terms of the plea agreement,defendant pleaded guilty to one count of criminal sale of a controlled substance in the thirddegree and purportedly waived his right to appeal. County Court subsequently sentenceddefendant, a felony drug offender previously convicted of a violent felony, to the agreed-uponsentence of eight years in prison followed by three years of postrelease supervision. Defendantappeals.
We are unpersuaded by defendant's contention that the waiver of the right to appeal isinvalid. A review of the record reflects that defendant assured County Court that he had enoughtime to speak with defense counsel about the plea agreement and was voluntarily pleading guilty.During the plea colloquy, the court explained that the right to appeal was separate and distinctfrom those rights automatically forfeited by the plea, which defendant acknowledged heunderstood and was willing to give up. Defendant also executed a written waiver of the right toappeal in open court and assured the court that he had reviewed it with counsel, understood it andhad no questions. The written waiver expressly provided that the waiver of his appeal rightsapplied "to all legal issues that can be waived under the law" and set forth examples of the typesof issues precluded, which included issues regarding the effectiveness of counsel prior to theguilty plea. With regard to the italicized phrase, defendant maintains that the statement wasincorrect since a claim of ineffective counsel that impacts the voluntariness of the plea survivesan appeal waiver (see People vCharlotten, 44 AD3d 1097, 1099 [2007]). We agree with that distinction, but do notagree that the waiver was invalid, as the sentence, read as a whole, specifies that the waiver onlyapplies to legal issues that can be waived. "[A]lthough the allocution and written waiver did notexpressly state that certain appellate issues survive an appeal waiver, we are satisfied that 'thecounseled defendant understood the distinction that some appellate review survived' "(People v Thomas, 190 AD3d1157, 1158 [2021], quoting Peoplev Thomas, 34 NY3d 545, 561 [2019]; accord People v Ballester-Perez, 195 AD3d 1234, 1235 [2021],lv denied 37 NY3d 970 [2021]) and find that defendant's waiver of the right to appealwas knowing, voluntary and intelligent (see People v Thomas, 34 NY3d at 559-564;People v Ballester-Perez, 195 AD3d at 1235; People [*2]v Daniels, 193 AD3d1179, 1180 [2021]; People v Thomas, 190 AD3d at 1158). As such, the valid appealwaiver forecloses defendant's challenge regarding his absence during a conference where the pleaagreement was discussed (see generallyPeople v Debberman, 113 AD3d 929, 929 [2014]), as well as his contention that theagreed-upon sentence was excessive (see People v Ballester-Perez, 195 AD3d at 1235;People v Daniels, 193 AD3d at 1180).
Garry, P.J., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that the judgmentis affirmed.