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People v. White

Supreme Court of New York, Third Department

December 28, 2017

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
RANDIESE WHITE, Appellant.

          Calendar Date: November 20, 2017

          Erin C. Morigerato, Albany, for appellant.

          P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

          Before: McCarthy, J.P., Rose, Devine, Mulvey and Rumsey, JJ.

          MEMORANDUM AND ORDER

          RUMSEY, J.

         Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered July 22, 2015, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

         Defendant waived indictment and agreed to be prosecuted pursuant to a superior court information charging him with attempted criminal possession of a weapon in the second degree. The negotiated plea agreement, which included a waiver of the right to appeal, also disposed of additional pending or then uncharged crimes that defendant was facing. Defendant thereafter pleaded guilty as charged and received the agreed-upon prison term of seven years followed by five years of postrelease supervision. This appeal by defendant ensued.

         Defendant initially contends that his waiver of the right to appeal was invalid. We disagree. Defendant was aware that such waiver was a component of his plea agreement, County Court distinguished the waiver of appeal from the trial-related rights that defendant was forfeiting by pleading guilty and defendant, in turn, orally waived his right to appeal and signed a written waiver to that effect (see People v Johnson, 153 A.D.3d 1031, 1032 [2017], lv denied 30 N.Y.3d 980');">30 N.Y.3d 980');">30 N.Y.3d 980');">30 N.Y.3d 980 [2017]; People v Dubois, 150 A.D.3d 1562, 1563 [2017]; People v Dickson-Eason, 143 A.D.3d 1013, 1013-1014 [2016], lv denied 28 N.Y.3d 1123');">28 N.Y.3d 1123 [2016]). Defendant's present claim - the he only "skimmed" the written waiver - is belied by the transcript of the plea proceeding, which reflects that defendant conferred with counsel prior to executing the written waiver and thereafter affirmed his understanding thereof (see People v Lambert, 151 A.D.3d 1119, 1119 [2017], lv denied 29 N.Y.3d 1092');">29 N.Y.3d 1092 [2017]). Under these circumstances, we find that defendant's waiver of the right to appeal was knowing, intelligent and voluntary (see People v Gray, 152 A.D.3d 1068, 1069 [2017], lv denied 30 N.Y.3d 980');">30 N.Y.3d 980');">30 N.Y.3d 980');">30 N.Y.3d 980 [2017]; People v McRae, 150 A.D.3d 1328, 1329 [2017], lv denied 29 N.Y.3d 1093');">29 N.Y.3d 1093 [2017]), thereby precluding his claim that the agreed-upon sentence imposed was harsh and excessive (see People v Odom, 150 A.D.3d 1484, 1485 [2017]; People v Dickson-Eason, 143 A.D.3d at 1014).

         To the extent that defendant's brief may be read as challenging the voluntariness of his plea, although this claim survives his valid waiver of appeal, it is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v Hankerson, 147 A.D.3d 1153, 1153 [2017], lv denied 29 N.Y.3d 998');">29 N.Y.3d 998 [2017]; People v Oddy, 144 A.D.3d 1322, 1323 [2016], lv denied 29 N.Y.3d 1131');">29 N.Y.3d 1131 [2017]). Additionally, inasmuch as defendant did not make any statements during the course of the plea colloquy that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea, the narrow exception to the preservation requirement is inapplicable (see People v Millard, 147 A.D.3d 1155, 1156 [2017], lv denied 29 N.Y.3d 999');">29 N.Y.3d 999 [2017]; People v Lunan, 141 A.D.3d 947, 948 [2016], lv denied 28 N.Y.3d 1125 [2016]). Accordingly, the judgment of conviction is affirmed.

          McCarthy, J.P., Rose, Devine and ...


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