People v. RollinsPeople v. Rollins
Appeal from a judgment of the County Court of Broome County (Dooley, J.), rendered September 8, 2017, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
In July 2017, defendant and his codefendants were charged in an 81-count indictment with various crimes related to the repeated sale of controlled substances. In satisfaction of the 45 counts against him, and in exchange for a maximum prison sentence of eight years, defendant pleaded guilty to criminal possession of a controlled substance in the third degree and agreed to waive his right to appeal, among other things. County Court thereafter sentenced defendant, pursuant to the terms of the plea agreement, to a prison sentence of six years followed by two years of postrelease supervision. Defendant appeals.
We affirm. Initially, we are unpersuaded by defendant‘s challenge to the validity of his appeal waiver on the basis that his counsel‘s alleged failure to adequately explain the waiver rendered defendant‘s agreement thereto unknowing. Our review of the record reveals that defendant was informed that the appeal waiver was a term of the plea agreement prior to pleading guilty, and County Court assured itself of defendant‘s understanding of the waiver by engaging in a lengthy discussion of the nature of the waiver and explaining that the right to appeal was separate and distinct from those rights automatically forfeited by pleading guilty (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Hunt, 176 AD3d 1253, 1253-1254 [2019]). Defendant confirmed his understanding of the waiver throughout the court‘s discussion and, ultimately, that his agreement to waive his right to appeal was voluntary and made after discussing the matter with his counsel. Further, defendant reviewed with counsel and executed a written waiver of appeal that adequately described the nature and the scope of the appellate rights being waived, and the court thereafter confirmed defendant‘s understanding thereof. Under these circumstances, we are satisfied that defendant‘s appeal waiver was knowingly, voluntarily and intelligently entered (see People v Feltz, 190 AD3d 1027, 1028 [2021]; People v Dill, 179 AD3d 1354, 1354-1355 [2020]; compare People v Latifi, 171 AD3d 1351, 1351 [2019]). Accordingly, defendant‘s challenge to his agreed-upon sentence, based upon his allegation that County Court improperly relied upon its own subjective impressions of defendant‘s criminal activity in imposing the sentence, is precluded by his valid appeal waiver (see People v Blair, 148 AD3d 1426, 1426-1427 [2017], lv denied 29 NY3d 1029 [2017]; see also People v Yaw, 120 AD3d 1447, 1449 [2014], lv denied 24 NY3d 1005 [2014]).
Defendant next challenges the voluntariness of his plea based upon certain statements allegedly made by his defense counsel. Although his claim impacts upon the voluntariness of his plea and, thus, survives his appeal waiver, it is unpreserved
In view of the foregoing, we do not find that defendant‘s initial statements cast doubt upon his guilt or otherwise called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation requirement (see People v Thomas, 34 NY3d 545, 560 [2019]; People v Taylor, 194 AD3d 1264, 1265 [2021], lv denied 37 NY3d 975 [2021]; People v Barnes, 119 AD3d 1290, 1291 [2014], lv denied 25 NY3d 987 [2015]; People v Dale, 115 AD3d 1002, 1007 [2014]). To the extent that defendant‘s claims in this regard involve matters outside the record, they are more properly the subject of a
Garry, P.J., Lynch, Pritzker and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.