| People v Downing |
| 2024 NY Slip Op 06581 [233 AD3d 965] |
| December 24, 2024 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Rashiem Downing, Appellant. |
Matthew Christiana, Brooklyn, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss ofcounsel), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the CountyCourt, Orange County (Hyun Chin Kim, J.), imposed February 2, 2024, upon his plea ofguilty, on the ground that the sentence was excessive.
Ordered that the sentence is affirmed.
Under the totality of the circumstances, the record demonstrates that the defendantknowingly, voluntarily, and intelligently waived his right to appeal (see People v Thomas, 34 NY3d545 [2019]; People vLopez, 6 NY3d 248 [2006]). Although it would have been better practice for theCounty Court to discuss with the defendant the waiver of his appellate rights beforeobtaining an admission of guilt (see People v Williams, 227 AD3d 480, 481 [2024]), therecord reflects that the defendant was aware of the People's demand for an appeal waiverbefore agreeing to plead guilty, as, among other things, he acknowledged that he haddiscussed the appeal waiver with his attorney. The record further reflects that thedefendant had prior experience with the criminal justice system and had pleaded guilty toa prior offense. Contrary to the defendant's contentions, under the circumstancespresented, the court's delay in explaining the appeal waiver until after the defendant'sfactual allocution of the crime did not render the appeal waiver invalid (see People v Bryant, 28 NY3d1094, 1095 [2016]; cf.People v Sutton, 184 AD3d 236, 237 [2020]). The defendant's valid waiver ofhis right to appeal precludes appellate review of his contention that the sentence imposedwas excessive (see People v Lopez, 6 NY3d at 253; People v Florio, 179 AD3d834, 835 [2020]).
"[A] waiver of the right to appeal does not affect the reviewability of the issue ofwhether there was a sufficient basis to impose an enhanced sentence" (People v Pereyra, 169 AD3d719, 719 [2019]; see Peoplev Pianaforte, 126 AD3d 815, 816 [2015]; People v Muhammad, 47 AD3d 951, 952 [2008]). Sincethe defendant was rearrested and failed to appear on a scheduled sentencing date inviolation of his plea agreement, the County Court "was no longer bound by the originalplea agreement, and had the right to impose a greater sentence" (People v Grant, 122 AD3d767, 767 [2014]; see Peoplev Holland, 218 AD3d 490, 490-491 [2023]; People v Scarlett, 176 AD3d 1111, 1112 [2019]; Peoplev Pereyra, 169 AD3d at 719; People v Smith, 160 AD3d 664, 665 [2018]; People v Diaz, 146 AD3d803, 805 [2017]). During sentencing, the court took into account the defendant'sprior criminal history, the loss of his child, [*2]his failureto appear for sentencing, and his subsequent arrest. Under the totality of thecircumstances, the imposition of an enhanced sentence was a provident exercise ofdiscretion (see People v Scarlett, 176 AD3d at 1112; People v Pereyra,169 AD3d at 719). Connolly, J.P., Chambers, Christopher, Landicino and Hom, JJ.,concur.