PEOPLE v. SMITH (2022)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Clinton County (William A. Favreau, J.), rendered May 27, 2021, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree.

Defendant pleaded guilty to an indictment charging him with criminal possession of a weapon in the third degree.  Pursuant to the terms of the plea agreement, defendant agreed to waive his right to appeal and to forfeit $1,167 that was seized in connection with an unrelated 2014 conviction.  Defendant was sentenced, as a second felony offender, to a prison term of 2 to 4 years to run consecutive to a previously imposed sentence.  Defendant appeals.

Contrary to defendant's contention, the record reflects that he knowingly, voluntarily and intelligently waived his right to appeal.  Defendant was aware that an appeal waiver was a condition of the plea agreement.  During the plea colloquy, County Court advised defendant of the separate and distinct nature of the appeal waiver, explained the appellate process and informed defendant that most claims of error would be waived, but that certain constitutional rights could still be raised on appeal.  Defendant acknowledged that he discussed the waiver of the right to appeal with counsel and understood its ramifications.  Although defendant points to some imprecise language used by County Court, “there is no mandatory litany that must be used in order to obtain a valid waiver of appellate rights,” and we are satisfied that the record as a whole reflects that defendant understood the nature and consequences of the appeal waiver (People v. Johnson, 14 N.Y.3d 483, 486, 903 N.Y.S.2d 299, 929 N.E.2d 361 [2010];  see People v. Nixon, 206 A.D.3d 1381, 1382, 168 N.Y.S.3d 907 [3d Dept. 2022]).  In view of the foregoing, we find that the oral waiver of the right to appeal is valid (see People v. Sims, 207 A.D.3d 882, 883, 172 N.Y.S.3d 195 [3d Dept. 2022];  People v. Devins, 206 A.D.3d 1365, 1366, 168 N.Y.S.3d 898 [3d Dept. 2022];  cf.  People v. See, 206 A.D.3d 1153, 1154–1155, 168 N.Y.S.3d 743 [3d Dept. 2022]).

To the extent that defendant challenges the written appeal waiver, the record reflects that defendant did not execute that written waiver until the day after he was sentenced.  As such, it could have no impact on the validity of the oral appeal waiver.  Given the valid appeal waiver, defendant's challenge to a condition of his plea agreement – specifically the forfeiture of monies seized in connection with a prior unrelated drug conviction – is foreclosed (see People v. Sczepankowski, 293 A.D.2d 212, 214, 746 N.Y.S.2d 46 [3d Dept. 2002], lv denied 99 N.Y.3d 564, 754 N.Y.S.2d 216, 784 N.E.2d 89 [2002];  see also People v. Brooks, 196 A.D.3d 914, 915, 147 N.Y.S.3d 897 [3d Dept. 2021];  People v. Daniels, 193 A.D.3d 1179, 1180, 146 N.Y.S.3d 680 [3d Dept. 2021]).  In any event, the issue is unpreserved for our review as the record does not reflect that defendant objected to such condition or made an appropriate postallocution motion (see People v. Monk, 189 A.D.3d 1970, 1972, 138 N.Y.S.3d 700 [3d Dept. 2020], lv denied 37 N.Y.3d 958, 147 N.Y.S.3d 509, 170 N.E.3d 383 [2021];  People v. Coleman, 138 A.D.3d 1014, 1015, 29 N.Y.S.3d 552 [2d Dept. 2016], lv denied 27 N.Y.3d 1149, 39 N.Y.S.3d 384, 62 N.E.3d 124 [2016]).

ORDERED that the judgment is affirmed.

McShan, J.

Lynch, J.P., Aarons, Reynolds Fitzgerald and Fisher, JJ., concur.