State of New York Supreme Court, Appellate Division Third Judicial Department
April 19, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JOSEPH E. GERTZBERG, APPELLANT.
Appeal from a judgment of the County Court of Schoharie County (Bartlett III, J.), rendered January 5, 2011, which revoked defendant's probation and imposed a sentence of imprisonment.
MEMORANDUM AND ORDER
Calendar Date: February 21, 2012
Before: Rose, J.P., Lahtinen, Stein, McCarthy and Garry, JJ.
Following defendant's plea of guilty to the crime of driving while intoxicated, he was sentenced to five years of probation. Thereafter, three violation of probation petitions were filed against defendant. In July 2010, among other things, he was sentenced in Otsego County Court to a prison term of 1 to 3 years upon his conviction of the crime of felony driving while intoxicated. Subsequently, defendant pleaded guilty to violating terms of his probation and waived his right to appeal, both orally and in writing. Defendant's probation was revoked and he was sentenced, in accordance with the plea agreement, to 1a to 4 years, said sentence to run consecutively to the Otsego County conviction. Defendant now appeals.
We affirm. Defendant's sole argument on appeal is that his sentence is harsh and excessive. Nonetheless, he is precluded from raising this claim by reason of his knowing, voluntary and intelligent waiver of the right to appeal (see People v Jones, 83 AD3d 1289, 1290 , lv denied 17 NY3d 860 ; People v Joseph, 69 AD3d 1056, 1056-1057 ).
Rose, J.P., Lahtinen, Stein, McCarthy and Garry, JJ., concur.
ORDERED that the judgment is affirmed.
Robert D. Mayberger Clerk of the Court
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