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The People of the State of v. Jason Cullen

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


December 20, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JASON CULLEN, APPELLANT.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered November 7, 2011, convicting defendant upon his plea of guilty of the crimes of assault in the second degree and forcible touching.

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

MEMORANDUM AND ORDER

Calendar Date: November 16, 2012

Before: Mercure, J.P., Spain, Malone Jr., Stein and McCarthy, JJ.

In satisfaction of a superior court information and a related pending rape indictment, defendant pleaded guilty to assault in the second degree and forcible touching. Defendant signed a written waiver of his right to appeal in open court, after the court ascertained defendant's understanding of the waiver. No promise was made regarding sentencing although defendant was advised of the maximum potential sentence. Defendant was thereafter sentenced, as an admitted second felony offender, to, among other things, an aggregate prison term of seven years, followed by five years of postrelease supervision. Defendant now appeals, contending that his sentence is harsh and excessive.

We affirm. To the extent that defendant contends that his waiver of the right to appeal was invalid, we are unpersuaded. The plea allocution -- which included an oral waiver -- and the written waiver demonstrate that defendant knowingly, intelligently and voluntarily waived his right to appeal the conviction and sentence (see People v Jerome, 98 AD3d 1188, 1189 [2012]; see also People v Lopez, 6 NY3d 248, 256 [2006]; People v Ducheneaux, 97 AD3d 852, 853 [2012]). Consequently, we are precluded from considering his claim that the sentence imposed is harsh and excessive (see People v Hidalgo, 91 NY2d 733, 736-737 [1998]; People v Lopez, 97 AD3d 853, 853-854 [2012], lv denied 19 NY3d 1027 [2012]; see also People v Lopez, 6 NY3d at 255--256).

Mercure, J.P., Malone Jr., Stein and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER: Robert D. Mayberger Clerk of the Court

20121220

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