PEOPLE v. HARRINGTON (2026)

DECISION & ORDER

Appeals by the defendant from two judgments of the Supreme Court, Kings County (Jill H. Konviser, J.), both rendered September 13, 2022, convicting him of aggravated sexual abuse in the second degree under Indictment No. 5682/15 and bail jumping in the second degree under Indictment No. 8479/17, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

Contrary to the defendant's contention, his waiver of the right to appeal was valid.  Although much of the discussion of the waiver of the right to appeal took place after the defendant had admitted his guilt, the appeal waiver was mentioned as being a condition of the plea bargain prior to the defendant's entry of his pleas of guilty and admissions of guilt (see People v. Felipe, 236 A.D.3d 920, 920–921, 228 N.Y.S.3d 328;  People v. Kadriu, 236 A.D.3d 820, 820, 227 N.Y.S.3d 749;  People v. Victor, 235 A.D.3d 783, 784, 226 N.Y.S.3d 592;  People v. Francois, 235 A.D.3d 657, 657, 225 N.Y.S.3d 381;  People v. White, 234 A.D.3d 884, 884–885, 225 N.Y.S.3d 378).  Under the totality of the circumstances, including the exemplary explanation of the right to appeal provided to the defendant and the defendant's age, experience, and background, the appeal waiver was knowing, voluntary, and intelligent (see People v. Sanders, 25 N.Y.3d 337, 340, 12 N.Y.S.3d 593, 34 N.E.3d 344;  People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645;  People v. Walcott, 238 A.D.3d 1177, 233 N.Y.S.3d 724;  People v. Victor, 235 A.D.3d at 784, 226 N.Y.S.3d 592;  People v. White, 234 A.D.3d at 885, 225 N.Y.S.3d 378).

The defendant's valid waiver of his right to appeal precludes appellate review of his challenge to the procedure used to adjudicate him a second felony offender (see People v. Smith, 244 A.D.3d 1144, 244 N.Y.S.3d 752;  People v. Simpson, 244 A.D.3d 762, 243 N.Y.S.3d 528;  People v. Haynes, 70 A.D.3d 718, 718–719, 893 N.Y.S.2d 284;  see also People v. Lassiter, 48 A.D.3d 700, 852 N.Y.S.2d 311;  People v. Backus, 43 A.D.3d 409, 410, 839 N.Y.S.2d 920), as well as his contention that the sentences imposed were excessive (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).

To the extent the defendant contends that New York's predicate felony offender statutes are facially unconstitutional, that contention is not precluded by the appeal waiver (see People v. Johnson, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528;  People v. Smith, 244 A.D.3d 1144, 244 N.Y.S.3d 752).  However, that contention is unpreserved for appellate review (see CPL 470.05[2];  People v. Hernandez, 43 N.Y.3d 591, 597, 239 N.Y.S.3d 59, 265 N.E.3d 1076;  People v. Munoz, 237 A.D.3d 1110, 1111, 230 N.Y.S.3d 414), and we decline to reach it in the exercise of our interest of justice jurisdiction (see People v. Munoz, 237 A.D.3d at 1111, 230 N.Y.S.3d 414).

CONNOLLY, J.P., VOUTSINAS, WAN and TAYLOR, JJ., concur.