PEOPLE v. SUTTON (2025)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Otsego County (John Lambert, J.), rendered April 27, 2022, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the fifth degree.

Defendant pleaded guilty to criminal sale of a controlled substance in the fifth degree in satisfaction of a multicount indictment and agreed to waive his right to appeal, with the understanding that he would be sentenced, as a second felony offender, to a prison term of 31/212 years, to be followed by two years of postrelease supervision.  During the plea colloquy, County Court advised defendant that, if he failed to appear at sentencing, the court would not be bound by the sentencing promise and could impose an enhanced sentence, which defendant acknowledged he understood.  Defendant thereafter failed to appear for sentencing and, upon being returned to court on a bench warrant, he was sentenced, as a second felony offender, to an enhanced prison term of four years, to be followed by two years of postrelease supervision.  Defendant appeals.

We affirm.  Initially, we note that defendant's belated execution of a comprehensive written waiver of appeal at the conclusion of the sentencing proceedings cannot be relied upon to establish that “defendant understood the terms and conditions of the waiver[ ], specifically, the nature and consequences of the rights he was relinquishing at the time he was asked to waive his right to appeal and entered a guilty plea” (People v. Spencer, 219 A.D.3d 981, 982–983, 194 N.Y.S.3d 818 [3d Dept. 2023], lv denied 40 N.Y.3d 1041, 200 N.Y.S.3d 770, 223 N.E.3d 1246 [2023];  see People v. Dawson, 235 A.D.3d 1034, 1035 n., 226 N.Y.S.3d 675 [3d Dept. 2025]).¹  “However, the lack of a valid written waiver is not fatal where, as here, the oral waiver colloquy is sufficient to demonstrate that the defendant knowingly, intelligently and voluntarily waived his or her right to appeal” (People v. Soto, 228 A.D.3d 1072, 1073, 213 N.Y.S.3d 497 [3d Dept. 2024] [internal quotation marks and citations omitted];  see People v. Goodnough, 233 A.D.3d 1185, 1185, 222 N.Y.S.3d 248 [3d Dept. 2024]).  In response to County Court's inquiries following its explanation of the waiver of the right to appeal, defendant assured the court that he understood that the appeal waiver was a condition of the plea agreement, that it was separate from the guilty plea, and that certain rights, including some specifically enumerated by the court, survived.  In addition, defendant confirmed that he had sufficient time to confer with counsel, informing the court that he and counsel had discussed the appeal waiver “[a] couple times.”  In view of the foregoing, we are satisfied that the record demonstrates that 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. Soto, 228 A.D.3d at 1073, 213 N.Y.S.3d 497).  As such, the valid appeal waiver precludes defendant's challenge to the severity of the enhanced sentence imposed (see People v. Sitts, 232 A.D.3d 995, 996, 221 N.Y.S.3d 352 [3d Dept. 2024];  People v. Soto, 228 A.D.3d at 1073, 213 N.Y.S.3d 497).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   In addition, the record does not reflect that County Court adequately ascertained whether defendant had read and understood the content of the written waiver.

Aarons, J.P., Pritzker, Ceresia, Fisher and Mackey, JJ., concur.