PEOPLE v. WAGONER (2004)

Appeal from a judgment of the County Court of Saratoga County (Scarano Jr., J.), rendered June 4, 2002, convicting defendant upon her plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree in full satisfaction of a three-count indictment.   As part of the plea, defendant executed a comprehensive written waiver of the right to appeal.   In addition to enumerating specific rights, the waiver contained a catch-all provision stating that defendant waived “[a]ny other matters which [she] may * * * appeal as of right or otherwise.”   Defendant was thereafter sentenced, in accordance with the plea agreement, to 2 to 6 years in prison.   She now appeals.

Defendant initially contends that the waiver is void in its entirety because its catch-all language encompassed issues that are nonwaivable.   We find this argument to be without merit.   Where a waiver of the right to appeal encompasses issues that are nonwaivable, this Court has excluded such issues from the scope of the waiver but otherwise upheld its validity (see People v. Umber, 2 A.D.3d 1051, 1052, 769 N.Y.S.2d 632 [2003];  People v. Cridelle, 283 A.D.2d 775, 775, 724 N.Y.S.2d 375 [2001] ).   Defendant's reliance on People v. Muniz, 91 N.Y.2d 570, 673 N.Y.S.2d 358, 696 N.E.2d 182 [1998] is misplaced.   Contrary to defendant's argument, that case does not require that a waiver expressly preserve a defendant's right to appeal all nonwaivable claims (see id. at 574, 673 N.Y.S.2d 358, 696 N.E.2d 182).   Inasmuch as the plea and waiver were entered into by defendant knowingly, voluntarily and intelligently, the waiver is valid and enforceable.

Defendant's challenge to the severity of the sentence is precluded by her valid waiver of the right to appeal (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998];  People v. Shaw, 309 A.D.2d 1074, 766 N.Y.S.2d 911 [2003], lv. denied 1 N.Y.3d 601, 776 N.Y.S.2d 233, 808 N.E.2d 369 [2004] ).   In any event, were we to consider this claim, we would find no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice (see People v. Sampson, 301 A.D.2d 677, 678, 752 N.Y.S.2d 905 [2003];  People v. Teague, 295 A.D.2d 813, 815, 743 N.Y.S.2d 909 [2002], lv. denied 98 N.Y.2d 772, 752 N.Y.S.2d 13, 781 N.E.2d 925 [2002] ).

ORDERED that the judgment is affirmed.

MERCURE, J.

CARDONA, P.J., CREW III, PETERS and KANE, JJ., concur.