PEOPLE v. WOMACK (2019)

MEMORANDUM AND ORDER

Following a traffic stop, defendant was arrested and transported to the police station and, while attempting to conceal a bag of heroin, she exposed one of the arresting officers to its contents, necessitating that he receive medical care.  Defendant was charged in a nine-count indictment with assault in the second degree, tampering with physical evidence and various drug-related crimes.  In satisfaction of all charges, defendant pleaded guilty to assault in the second degree and to the reduced charge of attempted criminal possession of a controlled substance in the third degree, pursuant to a plea agreement that included a waiver of appeal.  Consistent with the terms of the plea agreement, County Court sentenced defendant, as a second felony offender, to concurrent prison terms, the maximum of which is three years to be followed by five years of postrelease supervision.  Defendant appeals.

We affirm.  Contrary to defendant's contention, we find that her waiver of appeal was valid.  County Court advised defendant during the plea allocution that an appeal waiver was a condition of the plea agreement and, after explaining the trial-related rights that she was forfeiting by pleading guilty, separately explained to her that she ordinarily retained the right to appeal but that a waiver of that right was a condition of the plea agreement, which defendant confirmed she understood (see People v. Dickerson, 168 A.D.3d 1194, 1194, 90 N.Y.S.3d 702 [2019];  People v. Hall, 167 A.D.3d 1165, 1165–1166, 89 N.Y.S.3d 481 [2018], lvs denied 32 N.Y.3d 1201, 1204, 99 N.Y.S.3d 246, 122 N.E.3d 1158, 2019 WL 1208541 [2019] ).  Defendant then signed a written waiver of appeal, which explained her appellate rights and the consequences of the waiver and confirmed that she had discussed her rights and the waiver with defense counsel, who confirmed to the court that she had reviewed the written waiver with defendant (see People v. Moore, 167 A.D.3d 1158, 1159, 89 N.Y.S.3d 483 [2018], lv denied 33 N.Y.3d 951, 100 N.Y.S.3d 161, 123 N.E.3d 820, 2019 WL 1578261 [2019] ).  Although the court did not utilize the precise phrase “separate and distinct” (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ), it is well settled that “the court is not obliged to engage in any particular litany or catechism in satisfying itself that a defendant has entered a knowing, intelligent and voluntary appeal waiver” (People v. Walker, 166 A.D.3d 1393, 1393–1394, 86 N.Y.S.3d 920 [2018] [internal quotation marks and citation omitted];  see People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015];  People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145).  We are satisfied that the language employed here adequately conveyed to defendant that the right to appeal was separate and distinct from the trial-related rights forfeited by her guilty plea and did not impermissibly lump these distinct rights together (see People v. Sanders, 25 N.Y.3d at 341, 12 N.Y.S.3d 593, 34 N.E.3d 344;  People v. Lopez, 6 N.Y.3d at 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Franklin, 164 A.D.3d 1547, 1548, 83 N.Y.S.3d 742 [2018], lv denied 32 N.Y.3d 1171, 97 N.Y.S.3d 636, 121 N.E.3d 263 [2019] ).  Accordingly, we find that defendant's combined oral and written waiver of appeal was knowing, voluntary and intelligent (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Hall, 167 A.D.3d at 1165–1166, 89 N.Y.S.3d 481;  People v. Martinez, 166 A.D.3d 1376, 1377, 86 N.Y.S.3d 756 [2018], lv denied 32 N.Y.3d 1207 99 N.Y.S.3d 208, 122 N.E.3d 1121, 2019 WL 1200071 [2019] ).  Given defendant's valid appeal waiver, her challenge to the sufficiency of the plea allocution is precluded (see People v. Maddaloni, 166 A.D.3d 1235, 1235, 85 N.Y.S.3d 802 [2018];  People v. Wood, 161 A.D.3d 1447, 1448–1449, 77 N.Y.S.3d 763 [2018] ).

ORDERED that the judgment is affirmed.

Devine, J.

Egan Jr., J.P., Mulvey, Aarons and Rumsey, JJ., concur.