PEOPLE v. PICART (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heidi C. Cesare, J.), rendered May 24, 2022, convicting him of criminal possession of a weapon in the fourth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Under the totality of the circumstances, the record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal.  Although it would have been better practice for the Supreme Court to discuss with the defendant the waiver of his appellate rights before obtaining an admission of guilt, here, the court mentioned that the appeal waiver was a condition of the plea agreement prior to the defendant's plea of guilty and admission of guilt (see People v. Howard, 240 A.D.3d 513, 514, 237 N.Y.S.3d 675;  People v. Velazquez, 235 A.D.3d 664, 665, 226 N.Y.S.3d 336).  Moreover, the defendant acknowledged, inter alia, that he understood the appeal waiver and had discussed it with his attorney, and he executed a written waiver of appeal which he affirmed he had read and reviewed with his attorney (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222).  The defendant's valid waiver of his right to appeal precludes appellate review of his claim that the indictment charging him with Penal Law §§ 265.01–b and 265.01(1) is defective because the statutes, as applied, are violative of the Privileges and Immunities Clause (see People v. Richards, 238 A.D.3d 1176, 1176, 232 N.Y.S.3d 247;  People v. White, 234 A.D.3d 884, 885, 225 N.Y.S.3d 378), as well as his contention that the sentence imposed was excessive (see People v. Lopez, 6 N.Y.3d 248, 253, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

The defendant's challenge to a subsequent order modifying the conditions of probation is not properly before us on this appeal (see CPL 450.30[3];  People v. Pagan, 19 N.Y.3d 368, 370, 948 N.Y.S.2d 217, 971 N.E.2d 347).

CHAMBERS, J.P., WOOTEN, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.