PEOPLE v. BERRY (2025)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of St. Lawrence County (Craig Carriero, J.), rendered September 13, 2022, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.

Defendant was charged in an indictment with two counts of criminal possession of a controlled substance in the third degree.  On the eve of trial, defendant unsuccessfully moved to invalidate the People's certificate of compliance and deem them not ready for trial, claiming that the People failed to comply with discovery mandates.  Defendant thereafter pleaded guilty to the reduced charge of criminal possession of a controlled substance in the fourth degree and agreed to waive his right to appeal.  In accordance with the terms of the plea agreement, County Court sentenced defendant, as a second felony drug offender with a prior violent felony conviction, to a prison term of 51/212 years, to be followed by 11/212 years of postrelease supervision.  Defendant appeals.

We affirm.  Contrary to defendant's view, his waiver of the right to appeal is valid.  County Court advised defendant that the waiver of the right to appeal is separate and distinct from those rights automatically forfeited by his guilty plea and explained that, although the appeal waiver gives up the right to have an appellate court consider most claims of error, certain specified rights survive – which, upon inquiry by the court, defendant affirmed he understood.  In addition, defendant executed a comprehensive written appeal waiver form – a form that we have found acceptable in other cases – and assured the court that he had reviewed it with counsel, understood it and had no questions (see People v. Cali, 229 A.D.3d 940, 941, 215 N.Y.S.3d 222 [3d Dept. 2024];  People v. Patterson, 228 A.D.3d 1138, 1139, 213 N.Y.S.3d 549 [3d Dept. 2024];  People v. Thomas–Jandrew, 228 A.D.3d 1067, 1067, 211 N.Y.S.3d 622 [3d Dept. 2024]).  In view of the foregoing, defendant's waiver of his right to appeal was knowing, voluntary and intelligent (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Mathous, 228 A.D.3d 1140, 1140, 211 N.Y.S.3d 634 [3d Dept. 2024]).  Defendant's valid appeal waiver forecloses his challenge to the severity of the agreed-upon sentence (see People v. Pepe, 229 A.D.3d 1007, 1008, 214 N.Y.S.3d 535 [3d Dept. 2024];  People v. Jones, 229 A.D.3d 1005, 1006, 214 N.Y.S.3d 266 [3d Dept. 2024]).  Finally, defendant's contention regarding discovery violations affecting the validity of the certificate of compliance was forfeited by his unchallenged guilty plea (see People v. MacLean, 226 A.D.3d 1178, 1180 n. 1, 209 N.Y.S.3d 213 [3d Dept. 2024], lv denied 41 N.Y.3d 1019, 214 N.Y.S.3d 324, 237 N.E.3d 1263 [2024];  People v. Steward, 220 A.D.3d 982, 984, 198 N.Y.S.3d 611 [3d Dept. 2023], lv denied 40 N.Y.3d 1082, 202 N.Y.S.3d 774, 225 N.E.3d 893 [2023]).¹

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   To the extent defendant asserts a statutory speedy trial violation, such a claim is precluded by his valid appeal waiver (see People v. Wint, 222 A.D.3d 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];  People v. Votaw, 190 A.D.3d 1162, 1164, 139 N.Y.S.3d 455 [3d Dept. 2021], lv denied 36 N.Y.3d 1101, 144 N.Y.S.3d 127, 167 N.E.3d 1262 [2021]).

Aarons, J.

Egan Jr., J.P., Pritzker, Lynch and Ceresia, JJ., concur.