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People v. Clements

State of New York Supreme Court, Appellate Division Third Judicial Department


June 24, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
MICHAEL CLEMENTS, APPELLANT.

The opinion of the court was delivered by: McCarthy, J.

MEMORANDUM AND ORDER

Calendar Date: May 25, 2010

Before: Spain, J.P., Lahtinen, Stein, McCarthy and Garry, JJ.

Appeal from a judgment of the County Court of Schenectady County (Drago, J.), rendered March 4, 2008, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree, a reduced charge under count 1 of a six-count indictment. He waived his right to appeal during the plea colloquy and was thereafter sentenced in accordance with the negotiated plea agreement, as a second felony offender, to three years in prison followed by two years of postrelease supervision. Defendant appeals.

We affirm. Defendant argues that his waiver of the right to appeal was invalid. However, after County Court explained that the right to appeal was separate and distinct from those rights being forfeited as a result of his guilty plea, defendant executed a written appeal waiver in open court that indicated that he had discussed the matter with his attorney, fully understood the rights he was relinquishing and that he was "waiving [his] right to appeal voluntarily, knowingly, intelligently, and without coercion by anyone." Defendant also affirmed that he was willingly waiving his right to appeal on the record and, in response to multiple inquiries from County Court, stated that he had no questions regarding the issue. Under such circumstances, we find that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v Dennis, 66 AD3d 1058, 1058 [2009]; People v Tabbott, 61 AD3d 1183, 1184 [2009], lv denied 13 NY3d 750 [2009]; People v Stokely, 49 AD3d 966, 967-968 [2008]).

Finally, given his valid appeal waiver, defendant has forfeited his right to challenge the sentence as harsh and excessive (see People v Scitz, 67 AD3d 1251, 1252 [2009]).

Spain, J.P., Lahtinen, Stein and Garry, JJ., concur.

ORDERED that the judgment is affirmed.

20100624

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