PEOPLE v. ALLEN (2025)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Franklin County (Craig Carriero, J.), rendered January 16, 2025, convicting defendant upon her plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

Pursuant to a negotiated disposition and in full satisfaction of an indictment charging defendant with two counts of criminal possession of a controlled substance in the third degree and one count of obstructing governmental administration in the second degree, defendant pleaded guilty to a single count of criminal possession of a controlled substance in the third degree and waived her right to appeal, both orally and in writing.  The plea agreement contemplated defendant's acceptance into an adult court treatment program, in which case County Court agreed to sentence her to five years of probation.  In the event that defendant were to not be accepted, the court would sentence her to six months in jail and five years of probation.  Prior to sentencing, a warrant was issued for defendant's arrest, and defendant was charged with additional crimes, including three felonies.  At sentencing, defendant did not dispute that County Court was no longer bound by the terms of the plea agreement and, following a renegotiated global disposition, County Court sentenced defendant to a prison term of five years, to be followed by two years of postrelease supervision.  Defendant appeals.

We affirm.  As an initial matter, we find that defendant's waiver of her right to appeal is valid.  Defendant was advised that the appeal waiver was a condition of the plea agreement, and County Court explained the separate and distinct nature of the waiver and enumerated certain appellate issues that survive the waiver, and defendant affirmed her understanding thereof (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Snyder, 235 A.D.3d 1072, 1072–1073, 226 N.Y.S.3d 698 [3d Dept. 2025];  People v. Patterson, 228 A.D.3d 1138, 1139, 213 N.Y.S.3d 549 [3d Dept. 2024]).  “Defendant also executed a written waiver that similarly advised defendant of h[er] rights, acknowledging that [s]he had read the waiver, discussed it with counsel and had no questions regarding it” (People v. Snyder, 235 A.D.3d at 1072, 226 N.Y.S.3d 698 [citations omitted]).  Accordingly, we find that defendant's waiver of the right to appeal was knowing, intelligent and voluntary (see People v. Cali, 229 A.D.3d 940, 941–942, 215 N.Y.S.3d 222 [3d Dept. 2024];  People v. Delosh, 227 A.D.3d 1276, 1277, 212 N.Y.S.3d 464 [3d Dept. 2024]).

Although not precluded by the appeal waiver (see People v. Cruz, 221 A.D.3d 465, 465, 198 N.Y.S.3d 57 [1st Dept. 2023];  People v. Larock, 211 A.D.3d 1234, 1235, 179 N.Y.S.3d 812 [3d Dept. 2022];  People v. Turner, 158 A.D.3d 892, 893, 70 N.Y.S.3d 610 [3d Dept. 2018]), to the extent that defendant contends that County Court impermissibly imposed an enhanced sentence, this claim is unpreserved (see People v. El–Begearmi, 236 A.D.3d 1203, 1204, 229 N.Y.S.3d 697 [3d Dept. 2025];  compare People v. Lane, 233 A.D.3d 1207, 1210, 223 N.Y.S.3d 428 [3d Dept. 2024], lv denied 43 N.Y.3d 945, 231 N.Y.S.3d 402, 257 N.E.3d 97 [2025]).  As for defendant's challenge to the severity of her enhanced sentence – which was renegotiated and agreed to by defendant in exchange for the People's dismissal of the several new charges brought against her – inasmuch as County Court advised defendant of the conditions of the plea and the consequences for violating those conditions, this challenge is precluded by the valid appeal waiver (see People v. El–Begearmi, 236 A.D.3d at 1204, 229 N.Y.S.3d 697;  People v. Brown, 163 A.D.3d 1269, 1271, 82 N.Y.S.3d 218 [3d Dept. 2018];  People v. Turner, 158 A.D.3d at 892–893, 70 N.Y.S.3d 610;  People v. Adams, 153 A.D.3d 1449, 1451, 61 N.Y.S.3d 703 [3d Dept. 2017]).

ORDERED that the judgment is affirmed.

Garry, P.J., Pritzker, Reynolds Fitzgerald, Ceresia and Mackey, JJ., concur.