PEOPLE v. MCCULLOUGH (2026)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Broome County (Joseph Cawley, J.), rendered April 20, 2023, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.

On June 1, 2021, in satisfaction of a two-count indictment, defendant pleaded guilty to the reduced charge of criminal possession of a controlled substance in the fifth degree with the understanding that he would be sentenced, as a second felony drug offender previously convicted of a violent felony, to 21/212 years in prison, to be followed by two years of postrelease supervision, and he was required to waive the right to appeal.  County Court (Dooley, J.) set sentencing for August 20, 2021 and admonished defendant that if he failed to appear for sentencing, it would not be bound by the sentencing commitment and could impose an enhanced sentence of up to 41/212 years in prison.  Defendant subsequently failed to appear for sentencing, and a bench warrant was issued for his arrest.  In March 2023, defendant was arrested on the warrant.  Subsequently, County Court (Cawley, J.) imposed upon defendant an enhanced sentence of 31/212 years in prison, to be followed by two years of postrelease supervision.  Defendant appeals.

We affirm.  Initially, we find that defendant's waiver of the right to appeal is valid.  “Even [if we] were ․ to find that the written appeal waiver form contains, among other things, overbroad language, the oral colloquy and the assurances elicited from defendant with regard to his understanding of the nature and consequences of the appeal waiver were sufficient to support a knowing and voluntary waiver” (People v. Singleton, 251 AD3d 1165, 1166, [3d Dept 2026];  see People v. Thomas, 34 NY3d 545, 563–565 [2019];  People v. Gonzalez, 234 AD3d 1186, 1187 [3d Dept 2025] ).  The record reflects that defendant was aware that a waiver of his right to appeal was a condition of the plea agreement, and County Court (Dooley, J.) explained that the appeal waiver was separate and distinct from the rights forfeited by the guilty plea and that defendant still retained certain appellate rights notwithstanding the appeal waiver, some of which the court identified, which defendant acknowledged he understood (see People v. Bonser, 244 AD3d 1410, 1410 [3d Dept 2025];  People v. Sheehan, 242 AD3d 1260, 1261 [3d Dept 2025], lv denied 44 NY3d 1054 [2025] ).  The written waiver executed by defendant also explained the separate and distinct nature of the appeal waiver and referenced certain appellate rights that could not be waived.  Defendant confirmed that he had reviewed the waiver with counsel and understood its ramifications.  In light of the foregoing, we are satisfied that defendant knowingly, intelligently and voluntarily waived the right to appeal (see People v. Singleton, 251 AD3d at 1166;  People v. Bonser, 244 AD3d at 1410;  People v. Gonzalez, 234 AD3d at 1187).  The valid appeal waiver thus precludes defendant's challenge to the severity of his enhanced sentence, given that he was previously informed of the consequences of failing to appear for sentencing (see People v. Woody, 246 AD3d 1160, 1161 [3d Dept 2026], lv denied ––– NY3d –––– [Aug. 20, 2026];  People v. Drennan, 236 AD3d 1245, 1247 [3d Dept 2025], lv denied 43 NY3d 1045 [2025] ).

ORDERED that the judgment is affirmed.

Garry, P.J., Clark, Reynolds Fitzgerald, Corcoran and Ryba, JJ., concur.