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People v. Vaillent

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 1, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
PEDRO VAILLENT, ETC., DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered October 10, 2008, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to a term of 5 years, unanimously affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Sweeny, Acosta, Renwick, RomÁn, JJ.

3349/07

Defendant made a valid waiver of the right to appeal that forecloses his excessive sentence claim. Although the court's colloquy with defendant failed to make clear that the right to appeal is separate from the rights automatically forfeited upon a guilty plea (see People v Williams, 59 AD3d 339 [2009], lv denied 12 NY3d 861 [2009]), defendant also signed a waiver, and acknowledged on the record that he had understood it and discussed it with counsel. The written waiver cured any ambiguity in the court's inquiry and is enforceable (see People v Ramos, 7 NY3d 737 [2006]). As an alternative holding, we perceive no basis for reducing the sentence.

Defendant also claims the court improperly calculated the 10-year qualifying period for his predicate felony from the date of a resentencing. While this claim survives the appeal waiver, we reject it on the merits (see People v Jackson, 174 Misc 2d 105 [Sup Ct NY County 1997]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100601

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