PEOPLE v. TIETJE

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

The PEOPLE of the State of New York, Respondent, v. Gregory P. TIETJE, Appellant.

109307B

Decided: April 18, 2019

Before:  Lynch, J.P., Clark, Aarons, Rumsey and Pritzker, JJ. Dennis J. Lamb, Troy, for appellant, and appellant pro se. D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

MEMORANDUM AND ORDER

In full satisfaction of a four-count indictment, defendant agreed to plead guilty to one count of driving while intoxicated and executed a waiver of the right to appeal.  Thereafter, County Court sentenced defendant, in accordance with the terms of the plea agreement, to a prison term of 2 to 6 years, with the sentence to run consecutively to any previously imposed sentences.  Defendant appealed, and this Court rejected his counsel's Anders brief, withheld decision and assigned new counsel to represent defendant on appeal (166 A.D.3d 1079, 1079–1080, 85 N.Y.S.3d 287 [2018] ).  We now affirm.

Initially, defendant contends that his appeal waiver is invalid and does not preclude his challenge to the severity of the sentence.  We agree with defendant that County Court's question regarding whether defendant understood that he was giving up all of his appellate rights when pleading guilty was misleading because it implied “that the right to appeal is automatically extinguished upon entry of a guilty plea” (People v. Moyett, 7 N.Y.3d 892, 893, 826 N.Y.S.2d 597, 860 N.E.2d 59 [2006];  see People v. Billingslea, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Odom, 164 A.D.3d 1475, 1475, 83 N.Y.S.3d 624 [2018], lv denied 32 N.Y.3d 1176, 2019 WL 585296 [2019] ).  Nevertheless, the court's plea colloquy, together with the detailed written waiver of the right to appeal that explained, among other things, the appellate process and defendant's right to appeal, adequately apprised defendant that the right to appeal is separate and distinct from the trial-related rights automatically forfeited upon a plea of guilty (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 [2006];  People v. Weinstock, 129 A.D.3d 1663, 1663, 11 N.Y.S.3d 782 [2015], lv denied 26 N.Y.3d 1012, 20 N.Y.S.3d 552, 42 N.E.3d 222 [2015];  People v. Williams, 49 A.D.3d 1281, 1282, 856 N.Y.S.2d 334 [2008], lv denied 10 N.Y.3d 940, 862 N.Y.S.2d 347, 892 N.E.2d 413 [2008] ).  In addition, County Court confirmed that defense counsel had discussed the waiver of appeal with defendant and that defendant had no further questions regarding the written appeal waiver prior to signing it in open court (see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011];  People v. Williams, 167 A.D.3d 1084, 1085, 89 N.Y.S.3d 440 [2018], lvs denied ––– N.Y.3d –––– [Feb. 7, 2019];  People v. McClain, 165 A.D.3d 1345, 1345–1346, 86 N.Y.S.3d 230 [2018];  People v. Jackson, 129 A.D.3d 1342, 1342, 10 N.Y.S.3d 368 [2015] ).  Accordingly, defendant's argument that his sentence is harsh and excessive is precluded by his valid waiver of the right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Freeman, 169 A.D.3d 1115, 1116, 92 N.Y.S.3d 496 [2019];  People v. Watkins, 166 A.D.3d 1239, 1240, 88 N.Y.S.3d 281 [2018] ).

Finally, defendant's contentions raised in his supplemental brief regarding the adequacy of the medical care that he has received while confined concern matters that are outside of the record before us and are more properly addressed through “the grievance process, a CPLR article 78 proceeding or an action in the nature of mandamus” (Blake v. State of New York, 145 A.D.3d 1336, 1337, 42 N.Y.S.3d 875 [2016], lv denied 29 N.Y.3d 908, 2017 WL 2367307 [2017] ).

ORDERED that the judgment is affirmed.

Lynch, J.P., Clark, Aarons, Rumsey and Pritzker, JJ., concur.

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