PEOPLE v. PATTERSON (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of St. Lawrence County (Robert Main Jr., J.), rendered December 10, 2020, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree (two counts).

Defendant waived indictment and pleaded guilty to two counts of criminal possession of a controlled substance in the third degree as charged in a superior court information, stemming from his possession of heroin and cocaine.  The plea agreement outlined by County Court (Richards, J.) contemplated that defendant would apply to a judicial diversion program and, if he were accepted and successfully completed the program, he would receive a probationary sentence and, if denied entry to the program, he would receive a seven-year prison sentence followed by three years of postrelease supervision (hereinafter PRS);  if he failed, he was advised that he could receive a prison sentence up to the maximum of 12 years on each count, followed by three years of PRS. The plea agreement also required defendant to waive his right to appeal, and he executed a written appeal waiver.  Defendant was accepted into and entered the program but, weeks prior to his completion of the program, he was charged with violating the conditions of his release by failing to appear for a drug test, his graduation was deferred and, weeks later, he was again charged with failing to appear for a drug test;  he subsequently tested positive for cocaine.  At sentencing, defendant waived a hearing and was terminated from the judicial diversion program.  County Court (Main Jr., J.) sentenced him, as an acknowledged second felony drug offender, to two concurrent prison terms of seven years to be followed by three years of PRS. Defendant appeals.

We affirm.  Contrary to defendant's claim, he validly waived his right to appeal.  County Court (Richards, J.) advised defendant that there were certain appellate rights that he could not waive, providing specific examples of nonwaivable legal claims, and made clear that the waiver of appeal was separate and distinct from the trial-related rights that are automatically forfeited by a guilty plea (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Hurd, 217 A.D.3d 1268, 1268, 192 N.Y.S.3d 330 [3d Dept. 2023]).  In addition, defendant then reviewed and executed the written waiver of appeal in open court, which also made clear that certain appellate issues survive the waiver, delineating specific claims that survive, and defendant in turn assured the court that he had read and understood the waiver, had an adequate opportunity to discuss it with defense counsel and had no questions.  “To the extent that the written waiver contained overbroad language, both the written waiver and County Court's oral colloquy made clear – and we are satisfied that defendant understood – that some appellate review survived” (People v. Perry, 213 A.D.3d 1000, 1002, 182 N.Y.S.3d 389 [3d Dept. 2023] [internal quotation marks, brackets and citations omitted], lv denied 39 N.Y.3d 1143, 188 N.Y.S.3d 461, 209 N.E.3d 1287 [2023];  see People v. Wint, 222 A.D.3d 1050, 1050–1051, 201 N.Y.S.3d 544 [3d Dept. 2023], lv denied 41 N.Y.3d 945, 206 N.Y.S.3d 248, 229 N.E.3d 1141 [2024];  compare People v. Shanks, 37 N.Y.3d 244, 253, 154 N.Y.S.3d 646, 176 N.E.3d 682 [2021]).  Accordingly, we find that defendant's waiver of appeal was knowing, voluntary and intelligent (see People v. Thomas, 34 N.Y.3d 545, 558–563, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019];  People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Perry, 213 A.D.3d at 1000, 182 N.Y.S.3d 389;  People v. Ashley, 211 A.D.3d 1174, 1174, 179 N.Y.S.3d 460 [3d Dept. 2022];  People v. Cook, 208 A.D.3d 1508, 1509, 174 N.Y.S.3d 517 [3d Dept. 2022]).  Given the valid appeal waiver, defendant's challenge to the perceived severity of the sentence imposed is precluded (see People v. Lopez, 6 N.Y.3d at 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Hurd, 217 A.D.3d at 1269, 192 N.Y.S.3d 330).

ORDERED that the judgment is affirmed.

Garry, P.J., Egan Jr., Pritzker, Powers and Mackey, JJ., concur.