PEOPLE v. DRAKE (2023)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Franklin County (Derek P. Champagne, J.), rendered January 23, 2020, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

Defendant was indicted and charged with one count of promoting prison contraband in the first degree.  In full satisfaction of that indictment, defendant agreed to plead guilty to the reduced charge of attempted promoting prison contraband in the first degree with the understanding that he would be sentenced as a second felony offender to a prison term of 11/212 to 3 years – to be served consecutively to the sentence he then was serving.  The plea agreement also required defendant to waive his right to appeal.  Defendant pleaded guilty in accordance with the plea agreement, County Court imposed the agreed-upon sentence and this appeal ensued.

We affirm.  Contrary to defendant's assertion, we find that he knowingly, intelligently and voluntarily waived his right to appeal.  County Court explained the separate and distinct nature of the waiver and advised defendant that he retained the right to appeal certain issues (see People v. Ferretti, 209 A.D.3d 1173, 1173, 177 N.Y.S.3d 379 [3d Dept. 2022];  People v. Rivera, 201 A.D.3d 1132, 1133, 159 N.Y.S.3d 760 [3d Dept. 2022]).  After conferring with counsel, defendant executed a detailed written waiver in open court and advised the court that he had read the waiver, understood its contents and had no questions relative thereto (see People v. Ferretti, 209 A.D.3d at 1174, 177 N.Y.S.3d 379;  People v. Breithaupt, 171 A.D.3d 1311, 1312, 95 N.Y.S.3d 911 [3d Dept. 2019], lv denied 34 N.Y.3d 979, 113 N.Y.S.3d 645, 137 N.E.3d 15 [2019]).  Although the written waiver contained some overbroad language, it also expressly delineated the appellate rights that were not encompassed by the waiver (see People v. Ferretti, 209 A.D.3d at 1174, 177 N.Y.S.3d 379;  People v. Vittengl, 203 A.D.3d 1390, 1391, 163 N.Y.S.3d 715 [3d Dept. 2022]).  Inasmuch as the combined oral colloquy and written waiver made clear that some appellate review survived, we are satisfied that defendant validly waived his right to appeal (see id.).  In light of the valid appeal waiver, defendant's challenge to the severity of the sentence imposed is precluded (see People v. Robinson, 213 A.D.3d 1002, 1003, 181 N.Y.S.3d 470 [3d Dept. 2023]).

ORDERED that the judgment is affirmed.

Egan Jr., J.P., Aarons, Pritzker, Ceresia and Fisher, JJ., concur.