PEOPLE v. CLOW

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

The PEOPLE of the State of New York, Respondent, v. Andrew CLOW, Also Known as Drey, Appellant.

Decided: September 30, 2004

Before:  CARDONA, P.J., SPAIN, MUGGLIN, LAHTINEN and KANE, JJ. Eugene P. Devine, Public Defender, Albany (Theresa M. Suozzi of counsel), Albany, for appellant. Paul A. Clyne, District Attorney, Albany (Christopher D. Horn of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Teresi, J.), rendered April 24, 2001 in Albany County, convicting defendant upon his plea of guilty of the crime of attempted murder in the second degree.

In satisfaction of two indictments, defendant pleaded guilty to the crime of attempted murder in the second degree.   Defendant waived his right to appeal, including a specific waiver of any appeal of the agreed-upon sentence, and was sentenced in accordance with the plea agreement to a prison term of 20 years followed by 2 1/212 years of postrelease supervision.   Nonetheless, defendant appeals, solely contending that the sentence imposed was harsh and excessive.

 Where, as here, a defendant enters a guilty plea which the record reflects is knowing, voluntary and intelligent and includes a comprehensive waiver of the defendant's right to appeal, the appeal waiver is enforceable and includes any challenge to the severity of the lawful sentence imposed (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998];  People v. Allen, 82 N.Y.2d 761, 763, 603 N.Y.S.2d 820, 623 N.E.2d 1170 [1993];  People v. Seaberg, 74 N.Y.2d 1, 9-11, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989];  People v. Lemons, 6 A.D.3d 756, 773 N.Y.S.2d 623 [2004] ).   Indeed, when a defendant appeals from a guilty plea which includes an appeal waiver, and both have, necessarily, been reviewed and approved by the trial court, “[t]he role of the appellate courts is to review the record to ensure that the defendant's waiver reflects a knowing, intelligent and voluntary choice” (People v. Hidalgo, supra at 736, 675 N.Y.S.2d 327, 698 N.E.2d 46, citing People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992] and People v. Seaberg, supra at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022).   While the Appellate Divisions always retain interest of justice jurisdiction to review sentences for harshness and excessiveness (see CPL 470.15[2][c];  [3][c];  [6][b];  CPL 450.10[1];  470.20[6];  see also People v. Callahan, supra at 283-285, 590 N.Y.S.2d 46, 604 N.E.2d 108), a defendant's decision to waive appeal as part of a plea agreement represents “a decision not to invoke” the Appellate Divisions' discretionary review power, i.e., “[b]y pleading guilty a defendant forecloses the appellate court from reviewing the merits of the plea bargain ․ and there is nothing inherently wrong in a defendant similarly electing to foreclose review of a negotiated sentence ” (People v. Seaberg, supra at 9-10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [emphases added] ).

 Here, because our review of the record reflects that the plea and appeal waiver are, in all respects, valid and enforceable, we adhere to the principle that, “[b]y waiving [his] right to appeal, defendant agreed to end this matter entirely at sentencing and to abide by the [trial] court's exercise of discretion in determining [his] sentence” (People v. Hidalgo, supra at 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [emphases added];  see People v. Boyce, 2 A.D.3d 1208, 1209, 769 N.Y.S.2d 659 [2003], lv. denied 2 N.Y.3d 737, 778 N.Y.S.2d 463, 810 N.E.2d 916 [2004] ).  “[I]n most situations, the appellate courts should honor such waivers [of the right to appeal]” (People v. Callahan, supra at 280, 590 N.Y.S.2d 46, 604 N.E.2d 108), which “foreclose [ ] appellate review of all claims that might be raised on appeal, except, of course, those categories of claims that survive such waivers under our case law” (id. at 285, 590 N.Y.S.2d 46, 604 N.E.2d 108).   Doing so gives full and fair effect to the negotiated plea and appeal waiver and gives District Attorneys the full benefit of the bargain to which they consented, consistent with the long-standing principle underlying judicial recognition of appeal waivers that “bargains fairly made should signal an end to litigation, not a beginning” (People v. Seaberg, supra at 8, 543 N.Y.S.2d 968, 541 N.E.2d 1022).

The proper disposition of this appeal, “taken despite an effective and enforceable waiver [of appeal]” (People v. Callahan, supra at 283, 590 N.Y.S.2d 46, 604 N.E.2d 108), “is an affirmance predicated on the absence of any reviewable issues that have not been superseded by the [appeal] waiver” (id. at 285, 590 N.Y.S.2d 46, 604 N.E.2d 108;  see People v. Allen, 82 N.Y.2d 761, 763, 603 N.Y.S.2d 820, 623 N.E.2d 1170 [1993] ).

ORDERED that the judgment is affirmed.

SPAIN, J.

CARDONA, P.J., MUGGLIN, LAHTINEN and KANE, JJ., concur.

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