PEOPLE v. BRUNSON (2020)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Otsego County (Lambert, J.), rendered March 5, 2018, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the third degree.

Pursuant to a plea agreement, defendant pleaded guilty to the reduced charge of attempted criminal possession of a controlled substance in the third degree and waived his right to appeal.  County Court thereafter imposed the agreed-upon sentence of six years in prison, to be followed by two years of postrelease supervision.  Defendant appeals.

We affirm.  Review of the record reveals that defendant entered a valid waiver of the right to appeal.  County Court informed defendant that an appeal waiver was a condition of the plea agreement.  The court explained the separate and distinct nature of the appeal waiver, and defendant affirmed that he had discussed the waiver with counsel and that he understood its ramifications.  Accordingly, we find that defendant knowingly, intelligently and voluntarily waived the right to appeal his conviction and sentence (see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Couse, 178 A.D.3d 1207, 1207, 115 N.Y.S.3d 786 [2019], lv denied 35 N.Y.3d 941, 124 N.Y.S.3d 288, 147 N.E.3d 558 [2020] ).

Although defendant also signed a written appeal waiver, there is no indication in the record that County Court ascertained whether defendant had read the waiver or understood its contents.¹  Accordingly, the written waiver is invalid (see People v. Dolder, 175 A.D.3d 753, 754, 103 N.Y.S.3d 867 [2019];  People v. Pittman, 166 A.D.3d 1243, 1244, 86 N.Y.S.3d 347 [2018], lv denied 32 N.Y.3d 1176, 97 N.Y.S.3d 601, 121 N.E.3d 228 [2019] ).  However, the lack of a valid written waiver does not render defendant's appeal waiver invalid in light of the sufficiency of the oral colloquy (see People v. Bonner, 182 A.D.3d 867, 867, 120 N.Y.S.3d 862 [2020];  People v. Peryea, 169 A.D.3d 1120, 1120, 93 N.Y.S.3d 456 [2019], lv denied 33 N.Y.3d 980, 101 N.Y.S.3d 242, 124 N.E.3d 731 [2019] ).  The valid appeal waiver precludes our review of defendant's contention that the agreed-upon sentence is harsh and excessive (see People v. Ramos, 179 A.D.3d 1395, 1396, 118 N.Y.S.3d 291 [2020], lv denied 35 N.Y.3d 973, 125 N.Y.S.3d 11, 148 N.E.3d 475 [2020];  People v. Diggs, 178 A.D.3d 1203, 1205, 116 N.Y.S.3d 707 [2019], lv denied 34 N.Y.3d 1158, 120 N.Y.S.3d 234, 142 N.E.3d 1136 [2020] ).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Although defendant challenges the language of the written waiver as overbroad, County Court advised defendant during the colloquy that not all appellate rights can be waived, and we are satisfied that “defendant understood the distinction that certain appellate rights survived” (People v. Thomas, 34 N.Y.3d 545, 561, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019];  see People v. Martin, 179 A.D.3d 1385, 1386, 114 N.Y.S.3d 889 [2020] ).

Garry, P.J., Egan Jr., Lynch, Clark and Devine, JJ., concur.