PEOPLE v. WEBB (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered August 17, 2015, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

Defendant was charged by superior court information with one count of criminal possession of a controlled substance in the third degree, and he thereafter pleaded guilty to that charge and waived his right to appeal.  Defendant was subsequently sentenced, as a second felony offender, to a prison term of eight years to be followed by three years of postrelease supervision.  He now appeals.

Contrary to defendant's contention, we find his appeal waiver to be valid.  County Court did not lump the right to appeal with the panoply of rights usually forfeited by a guilty plea, and defendant agreed that he understood the “separate and distinct nature” of the right to appeal.  Moreover, defendant confirmed on the record that he understood the written appeal waiver that he had executed in open court, which explained that “the waiver of [defendant's] appellate rights is separate and distinct from those rights ․ automatically forfeited upon [his] plea of guilty.”  The written waiver adequately detailed the scope of the appellate rights that defendant was waiving and recited that defendant had discussed the waiver of those rights with counsel.  Accordingly, we find defendant's combined oral and written waiver to be knowing, voluntary and intelligent (see People v. Belile, 137 A.D.3d 1460, 1461, 27 N.Y.S.3d 738 [2016];  People v. McKenzie, 136 A.D.3d 1120, 1121, 25 N.Y.S.3d 406 [2016], lv denied 27 N.Y.3d 1002, 38 N.Y.S.3d 112, 59 N.E.3d 1224 [2016];  People v. Devault, 124 A.D.3d 1140, 1140, 1 N.Y.S.3d 579 [2015], lv denied 25 NY3d 989, 10 N.Y.S.3d 532, 32 N.E.3d 969 [2015] ).  Defendant's contention that the agreed-upon sentence is harsh and excessive is barred by his valid appeal waiver (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Toledo, 144 A.D.3d 1332, 1333, 40 N.Y.S.3d 680 [2016], lv denied 29 N.Y.3d 1001, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017] ).

Defendant's claim that he was illegally sentenced as a second felony offender survives his valid appeal waiver (see People v. Glynn, 72 A.D.3d 1351, 1351, 899 N.Y.S.2d 442 [2010], lv denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [2010] ).  However, defendant failed to object to being sentenced as a second felony offender despite having the opportunity to do so, and the issue is therefore unpreserved (see People v. Caldwell, 80 A.D.3d 998, 999, 914 N.Y.S.2d 688 [2011], lv denied 16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198 [2011];  People v. Glynn, 72 A.D.3d at 1352, 899 N.Y.S.2d 442).  In any event, were this issue properly before us, we would find, upon reviewing the record, that there was substantial compliance with CPL 400.21 (see People v. Hummel, 127 A.D.3d 1506, 1507, 7 N.Y.S.3d 701 [2015], lv denied 25 N.Y.3d 1202, 16 N.Y.S.3d 525, 37 N.E.3d 1168 [2015];  compare People v. Farrow, 69 A.D.3d 980, 981, 892 N.Y.S.2d 630 [2010] ).

ORDERED that the judgment is affirmed.

Garry, P.J.

Lynch, Clark, Aarons and Pritzker, JJ., concur.