PEOPLE v. HAUPT

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Deeger S. HAUPT, Defendant-Appellant.

Decided: March 18, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, GORSKI, SMITH, AND LAWTON, JJ. David M. Parks, Ithaca, for Defendant-Appellant. R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him after a jury trial of gang assault in the first degree (Penal Law § 120.07) and assault in the second degree (§ 120.05[1] ).   After defendant was sentenced and filed his notice of appeal, he waived his right to appeal with respect to the judgment at issue herein as part of a plea agreement concerning an unrelated charge.  “The waiver was knowing and voluntary, and there is no indication that it was elicited in order to ‘conceal error or prosecutorial overreaching’ that occurred at trial” (People v. Turck, 305 A.D.2d 1072, 1072, 758 N.Y.S.2d 895, lv. denied 100 N.Y.2d 566, 763 N.Y.S.2d 824, 795 N.E.2d 50, quoting People v. Boykin, 281 A.D.2d 708, 708, 721 N.Y.S.2d 299).   Rather, “the record establishes that the waiver stem[med] from the desire of defendant to ‘minimize his jail time’ and avail himself of a promise of concurrent sentencing” (People v. Holmes, 294 A.D.2d 871, 872, 740 N.Y.S.2d 919, lv. denied 98 N.Y.2d 730, 749 N.Y.S.2d 480, 779 N.E.2d 191, quoting People v. Korona, 197 A.D.2d 788, 790, 603 N.Y.S.2d 88, lv. denied 82 N.Y.2d 926, 610 N.Y.S.2d 178, 632 N.E.2d 488).   The waiver of the right to appeal encompasses the challenges by defendant to County Court's suppression ruling (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754) and the severity of the sentence (see People v. Allen, 82 N.Y.2d 761, 763, 603 N.Y.S.2d 820, 623 N.E.2d 1170).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: