PEOPLE v. MUNGER

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Brian S. MUNGER, Appellant.

Decided: May 29, 2014

Before: PETERS, P.J., STEIN, McCARTHY and EGAN JR., JJ. Paul J. Connolly, Delmar, for appellant. James A. Murphy III, District Attorney, Ballston Spa (Ann C. Sullivan of counsel), for respondent.

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered August 20, 2012, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Defendant waived indictment and pleaded guilty to a superior court information charging him with attempted criminal sale of a controlled substance in the third degree. In accordance with the plea agreement, defendant was sentenced as a second felony offender to a prison term of 21/212 years followed by three years of postrelease supervision, with a recommendation for participation in a shock incarceration program. Defendant now appeals.

We affirm. Contrary to defendant's contention, both the written waiver and the plea colloquy informed him that his right to appeal was “ ‘separate and distinct’ “ from those rights automatically forfeited upon pleading guilty and, therefore, we conclude that he knowingly, intelligently and voluntarily waived his right to appeal his conviction and sentence (People v. Baliraj, 101 AD3d 1175, 1176 [2012], lv denied 21 NY3d 941 [2013], quoting People v. Lopez, 6 NY3d 248, 256 [2006]; see People v. Martin, 105 AD3d 1266, 1267 [2013] ). Given that his right to appeal was validly waived, we are precluded from reviewing his contention that the sentence imposed was harsh and excessive (see People v. Newton, 113 AD3d 1000, 1001 [2014]; People v. Fling, 112 AD3d 1001, 1002 [2013] ).

ORDERED that the judgment is affirmed.

PETERS, P.J.

STEIN, McCARTHY and EGAN JR., JJ., concur.

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