PEOPLE v. NEILL

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

The PEOPLE of the State of New York, Respondent, v. Paul L. O'NEILL, Appellant.

109533

Decided: May 23, 2019

Before:  Garry, P.J., Mulvey, Aarons, Rumsey and Pritzker, JJ. John A. Cirando, Syracuse, for appellant. Patrick A. Perfetti, District Attorney, Cortland (Elizabeth McGrath of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Cortland County (Ames, J.), rendered January 12, 2016, convicting defendant upon his plea of guilty of the crimes of course of sexual conduct against a child in the first degree and use of a child in a sexual performance.

Defendant waived indictment, agreed to plead guilty to a superior court information charging him with use of a child in a sexual performance and course of sexual conduct against a child in the first degree and, consistent with the terms of that plea agreement, was sentenced to an aggregate prison term of 15 years followed by 20 years of postrelease supervision;  upon defendant's appeal, this Court affirmed (People v. O'Neill, 116 A.D.3d 1240, 983 N.Y.S.2d 738 [2014] ).  Thereafter, defendant moved for a writ of error coram nobis alleging that appellate counsel was ineffective for failing to challenge the superior court information as jurisdictionally defective;  in response, this Court granted the motion, reinstated the appeal, vacated the plea and remitted the matter for further proceedings (People v. O'Neill, 129 A.D.3d 1382, 12 N.Y.S.3d 349 [2015] ).

Following this Court's remittal, defendant again waived indictment and ultimately agreed to plead guilty to a superior court information with the understanding that he would be sentenced to a prison term of 10 years – followed by 20 years of postrelease supervision – upon his conviction of course of sexual conduct against a child in the first degree and to a prison term of 5 to 15 years upon his conviction of use of a child in a sexual performance, said sentences to run concurrently.  The plea agreement also required defendant to waive his right to appeal.  Defendant pleaded guilty in conformity with the terms of the plea agreement, and County Court imposed the contemplated concurrent sentences.  This appeal ensued.

We affirm.  Although both the oral and written explanation of the waiver of appeal could have been expressed with greater clarity, defendant was aware that the waiver of appeal was part of his plea agreement (see People v. Jawan, 165 A.D.3d 1350, 1350, 82 N.Y.S.3d 905 [2018], lv denied 32 N.Y.3d 1173, 97 N.Y.S.3d 580, 121 N.E.3d 207 [2019];  People v. Larose, 160 A.D.3d 1215, 1216 [2018], lv denied 31 N.Y.3d 1150, 83 N.Y.S.3d 432, 108 N.E.3d 506 [2018] ), he executed a written waiver in open court, wherein he agreed to waive his right to appeal his conviction and sentence, and, in response to County Court's inquiries, he indicated that he had read the written waiver, understood its terms, had discussed the waiver with counsel and had no questions relative thereto (see People v. Horton, 167 A.D.3d 1166, 1167, 87 N.Y.S.3d 912 [2018];  People v. Jawan, 165 A.D.3d at 1350, 82 N.Y.S.3d 905).  Under these circumstances, we find that defendant's waiver of the right to appeal was knowing, intelligent and voluntary (see People v. Adams, 165 A.D.3d 1343, 1344, 85 N.Y.S.3d 618 [2018];  People v. White, 156 A.D.3d 1249, 1249–1250, 65 N.Y.S.3d 812 [2017], lv denied 31 N.Y.3d 988, 77 N.Y.S.3d 665, 102 N.E.3d 442 [2018] ).  Accordingly, defendant's claim that the agreed-upon sentences imposed are harsh and excessive is precluded (see People v. Taft, 169 A.D.3d 1266, 1267, 94 N.Y.S.3d 726 [2019];  People v. Chapman, 168 A.D.3d 1315, 1316, 90 N.Y.S.3d 920 [2019] ).

Defendant's challenge to the factual sufficiency of his plea is precluded by his valid appeal waiver (see People v. Peryea, 169 A.D.3d 1120, 1121, 93 N.Y.S.3d 456 [2019], lv denied ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2019 WL 2070938 [Apr. 2, 2019];  People v. Letohic, 166 A.D.3d 1223, 1223, 85 N.Y.S.3d 799 [2018], lv denied 32 N.Y.3d 1174, 97 N.Y.S.3d 585, 121 N.E.3d 212 [2019] ), and his assertion that his plea was involuntary is unpreserved for our review absent evidence of an appropriate postallocution motion (see People v. Johnson, 170 A.D.3d 1274, 1275, 95 N.Y.S.3d 467 [2019];  People v. Castro, 170 A.D.3d 1286, 1288, 95 N.Y.S.3d 457 [2019] ).  Further, as the record does not reflect that defendant made any statements that were inconsistent with his guilt, negated an element of the charged crimes or otherwise called into question the voluntariness of his plea, the narrow exception to the preservation requirement was not triggered (see People v. Freeman, 169 A.D.3d 1115, 1116, 92 N.Y.S.3d 496 [2019];  People v. Tucker, 164 A.D.3d 948, 950, 81 N.Y.S.3d 677 [2018] ).  In any event, any ambiguity regarding the net effect of the concurrent sentences to be imposed was clarified during the plea colloquy.  Finally, although defendant now contends that he was not apprised of the possibility of civil confinement until the conclusion of the sentencing proceeding, this claim, which contradicts defendant's on-the-record representations to County Court, is unpreserved (see People v. Madden, 112 A.D.3d 740, 741, 976 N.Y.S.2d 408 [2013] ).  Were we to address this issue, we would note that the possibility of civil confinement is a collateral consequence of defendant's guilty plea and, as such, County Court's failure to address this issue prior to accepting defendant's plea would not render such plea involuntary under the circumstances presented here (see People v. Harnett, 16 N.Y.3d 200, 205–206, 920 N.Y.S.2d 246, 945 N.E.2d 439 [2011];  People v. Madden, 112 A.D.3d at 741, 976 N.Y.S.2d 408).  Defendant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

ORDERED that the judgment is affirmed.

Mulvey, J.

Garry, P.J., Aarons, Rumsey and Pritzker, JJ., concur.

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