PEOPLE v. NORTON

Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. Adam D. NORTON, Appellant.

Decided: July 22, 2004

Before:  CARDONA, P.J., SPAIN, CARPINELLO, MUGGLIN and LAHTINEN, JJ. Paul J. Connolly, Delmar, for appellant. James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.

Appeal from a judgment of the County Court of Saratoga County (Scarano Jr., J.), rendered June 27, 2003, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Defendant, waiving his right to appeal, pleaded guilty to the crime of attempted criminal sale of a controlled substance in the third degree.   In accordance with the plea agreement, defendant was sentenced to a prison term of 3 to 9 years.

 We are unpersuaded by defendant's contention that the waiver of the right to appeal is ineffective due to the catch-all provision purporting to waive all appealable matters defendant may have as of right.   Although nonwaivable issues are excluded from the scope of the waiver, the remainder of the waiver is valid and enforceable (see People v. Wagoner, 6 A.D.3d 985, 777 N.Y.S.2d 522 [2004];  People v. Umber, 2 A.D.3d 1051, 1052, 769 N.Y.S.2d 632 [2003], lv. denied 2 N.Y.3d 747, 778 N.Y.S.2d 472, 810 N.E.2d 925 [2004] ).   To that end, defendant's challenge to the severity of the sentence is not preserved for our review given the knowing, voluntary and intelligent waiver of his right to appeal (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998];  People v. Lemons, 6 A.D.3d 756, 773 N.Y.S.2d 623 [2004] ).   Were we to consider the merits of the argument, we would find no basis to disturb the sentence imposed despite defendant's youth and sparse criminal history (see People v. Baker, 6 A.D.3d 751, 773 N.Y.S.2d 621 [2004];  People v. Baker, 195 A.D.2d 700, 600 N.Y.S.2d 162 [1993] ).   Defendant's remaining contention has been reviewed and found to be without merit.

ORDERED that the judgment is affirmed.

Copied to clipboard