THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JEREMY WEATHERBEE DEFENDANT APPELLANT (2017)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  On appeal from a judgment convicting him upon his plea of guilty of, inter alia, felony driving while intoxicated (Vehicle and Traffic Law §§ 1192[3];  1193[1][c][i][A] ), defendant contends that his waiver of the right to appeal is invalid and does not in any event encompass his challenge to the severity of the sentence.  We conclude that “ ‘[t]he written waiver of the right to appeal, together with defendant's responses during the plea proceeding, establish that the waiver was voluntarily, knowingly, and intelligently entered’ “ (People v. Smith, 122 AD3d 1420, 1420, lv denied 25 NY3d 1172;  see People v. Ramos, 7 NY3d 737, 738).  Contrary to defendant's contention, “[a]ny nonwaivable issues purportedly encompassed by the waiver ‘are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable’ “ (People v. Neal, 56 AD3d 1211, 1211, lv denied 12 NY3d 761).  Nonetheless, even assuming, arguendo, that defendant's challenge to the severity of his sentence is not encompassed by his valid waiver of the right to appeal (see e.g. People v. Leiser, 124 AD3d 1349, 1350), we conclude that the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court