Calendar Date: December 14, 2017
Before: Garry, P.J., Lynch, Clark, Aarons and Pritzker, JJ.
Diamond, Albany, for appellant.
P. Carriero, District Attorney, Malone (Jennifer M. Hollis of
counsel), for respondent.
MEMORANDUM AND ORDER
(1) from a judgment of the County Court of Franklin County
(Main Jr., J.), rendered April 13, 2015, which resentenced
defendant upon his conviction of burglary in the third
degree, and (2) from a judgment of said court, rendered
September 16, 2015, which revoked defendant's probation
and imposed a sentence of imprisonment.
2013, defendant waived indictment and agreed to be prosecuted
pursuant to a superior court information charging him with
burglary in the third degree and criminal possession of a
weapon in the fourth degree. Defendant thereafter pleaded
guilty to burglary in the third degree in full satisfaction
of the charged crimes and waived his right to appeal in
exchange for a split sentence of six months in the local jail
and five years of probation. Less than five months later,
defendant was charged with violating the terms and conditions
of his probation by, among other things, testing positive for
opiates. Defendant subsequently admitted violating the terms
and conditions of his probation and waived his right to
appeal - with the understanding that he would be restored to
probation pending successful completion of an inpatient
treatment program. After achieving a successful discharge
from treatment, defendant was resentenced/restored to
probation in April 2015.
August 2015, defendant again was charged with violating the
terms and conditions of his probation - this time by testing
positive for suboxone and failing to truthfully respond to
the Probation Department's inquiries relative thereto. A
hearing was scheduled for September 2015, at which time
defendant agreed to admit to certain violations with the
understanding that County Court would revoke his probation
and resentence him to no more than an indeterminate prison
term of 2 to 6 years. Defendant also was required to waive
his right to appeal (except as to constitutional issues and
any violation of the court's sentencing commitment).
Following defendant's admissions, County Court revoked
defendant's probation and resentenced him to a prison
term of 2 to 6 years . These appeals by defendant ensued.
to defendant's assertion, we find that his waiver of the
right to appeal - as placed on the record during the course
of the September 2015 violation of probation proceeding - was
knowing, intelligent and voluntary. County Court
distinguished defendant's appellate rights from the other
rights that defendant would be forfeiting by admitting that
he violated the terms and conditions of his probation and
made clear that defendant was "giving up [his] right to
appeal anything other than constitutional issues... or any
violation by the [c]ourt of its sentencing commitment"
(see People v Fifield, 149 A.D.3d 1420, 1421 ;
People v Graves, 113 A.D.3d 998, 998-999 ,
lv denied 23 N.Y.3d 1037');">23 N.Y.3d 1037 ). Defense counsel
advised the court that he had discussed the waiver with
defendant, and defendant, in turn, confirmed his
understanding and acceptance of the waiver (see People v
Bartlett, 148 A.D.3d 1468, 1469 ; People v
Graves, 113 A.D.3d at 998-999). Under these
circumstances, we are satisfied that defendant's waiver
of the right to appeal was valid (see People v
Bartlett, 148 A.D.3d at 1469).
defendant's claim that the sentence imposed is harsh and
excessive, inasmuch as the challenged waiver of the right to
appeal arose in the context of defendant's admission that
he violated the terms and conditions of his probation - as
opposed to defendant's initial guilty plea - we find that
defendant's valid appeal waiver precludes his challenge
to the severity of the sentence imposed following the
revocation of his probation (compare People v
Giuliano, 151 A.D.3d 1958');">151 A.D.3d 1958 , lvs denied 30
N.Y.3d 949 , People v Klemko, 150 A.D.3d 1487');">150 A.D.3d 1487
, and People v Williams, 140 A.D.3d 1749');">140 A.D.3d 1749
, lv denied 28 N.Y.3d 975');">28 N.Y.3d 975 , with
People v Hare, 110 A.D.3d 1117');">110 A.D.3d 1117 , People v
Ducheneaux, 97 A.D.3d 852');">97 A.D.3d 852 , and People v
Gertzberg, 94 A.D.3d 1293');">94 A.D.3d 1293 ). Defendant's
attempt to circumvent the valid appeal waiver by asserting
that the sentence imposed constitutes cruel and unusual
punishment under the Eighth Amendment is unavailing, and his
remaining arguments have been considered and found to be
lacking in merit. Accordingly, the judgments are affirmed.
P.J., Lynch, Clark and Aarons, JJ., concur.
that the judgments are affirmed.