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People v. Smith

Supreme Court of New York, Third Department

January 11, 2018

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
VIRGILIO SMITH, Appellant.

          Calendar Date: November 13, 2017

          Timothy S. Brennan, Schenectady, for appellant.

          Robert M. Carney, District Attorney, Schenectady (Michael Sardo, Law Intern), for respondent.

          Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Pritzker, JJ.

          MEMORANDUM AND ORDER

          LYNCH, J.

         Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered June 26, 2015, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a weapon in the third degree.

         Defendant was charged in a six-count indictment with various weapons- and drug-related crimes. In full satisfaction thereof, defendant pleaded guilty to the reduced charge of attempted criminal possession of a weapon in the third degree and executed a written waiver of the right to appeal. Consistent with the terms of the plea agreement, defendant thereafter was sentenced to a prison term of three years followed by two years of postrelease supervision. Defendant now appeals.

         We affirm. Contrary to defendant's assertion, the record establishes that defendant's combined oral and written waiver of the right to appeal was knowing, intelligent and voluntary (see People v Sanders, 25 N.Y.3d 337, 339-341 [2015]; People v Pixley, 150 A.D.3d 1555, 1556-1557 [2017], lv denied 30 N.Y.3d 952');">30 N.Y.3d 952 [2017]). Defendant was apprised that a waiver of the right to appeal was a condition of the plea agreement (see People v Bateman, 151 A.D.3d 1482, 1483 [2017]) and, during the ensuing colloquy, County Court explained that defendant's right to appeal was separate and distinct from those trial-related rights automatically forfeited by his guilty plea (see People v Lopez, 6 N.Y.3d 248, 256 [2006]; People v Lambert, 151 A.D.3d 1119, 1119 [2017], lv denied 29 N.Y.3d 1092');">29 N.Y.3d 1092 [2017]). Defendant, in turn, orally confirmed his understanding of the waiver and thereafter executed a detailed written waiver of appeal. He acknowledged that he had reviewed the waiver with counsel, indicating that he had no questions relative thereto, and again confirmed his understanding of the waiver (see People v Lambert, 151 A.D.3d at 1119; People v Tulip, 150 A.D.3d 1564, 1565 [2017]). "As defendant's full appreciation of the consequences and understanding of the terms and conditions of the plea, including a waiver of the right to appeal, are apparent on the face of the record, we find that his waiver of appeal was made knowingly, intelligently and voluntarily" (People v Bateman, 151 A.D.3d at 1483 [internal quotation marks and citations omitted]; see People v Lester, 141 A.D.3d 951, 952 [2016], lv denied 28 N.Y.3d 1185');">28 N.Y.3d 1185 [2017]).

         Defendant's further challenge to the voluntariness of his plea survives the valid appeal waiver but is unpreserved for our review in the absence of an appropriate postallocution motion (see People v Bonds, 148 A.D.3d 1304, 1305 [2017], lvs denied 29 N.Y.3d 1076, 1081 [2017]; People v Dolberry, 147 A.D.3d 1149, 1150 [2017], lv denied 29 N.Y.3d 1078');">29 N.Y.3d 1078 [2017]). Additionally, inasmuch as a review of the plea colloquy reveals that defendant did not make any statements that were inconsistent with his guilt or otherwise called into question the voluntariness of his plea, the narrow exception to the preservation doctrine has not been triggered (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 Oddy, 144 A.D.3d 1322, 1323-1324 [2016], lv denied 29 N.Y.3d 1131');">29 N.Y.3d 1131 [2017]).

          McCarthy, J.P., Egan Jr., Devine and ...


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