THE PEOPLE OF THE STATE OF NEW YORK, Rеspondent, v MARK H. TYLER, Appellant.
Supreme Court, Appellate Division, Third Department, New York
2015
130 AD3d 1383 | 14 NYS3d 570
In 2013, after defendant sold cocaine to a confidential informant on two separate occasions, he was charged in a six-count indictment with two counts each of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. In a separate indictment, defendant was charged with one count of failing to register as a sex offender as a class E felony based upon his previous conviction for failure to register as a sex offender (see
Initially, we reject defendant‘s claim that his aрpeal waiver was invalid. An appeal waiver is effective as long as the record confirms that it was knowing, intelligеnt and voluntary (see People v Lopez, 6 NY3d 248, 256 [2006]). This standard is met if the record reveals that “defendant [had] a full appreciation of the cоnsequences of such waiver” (People v Bradshaw, 18 NY3d 257, 264 [2011] [internal quotation marks and citation omitted]) and that defendant understood “that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” (People v Lopez, 6 NY3d at 256). Here, thе record of the plea proceedings reflects that County Court clearly stated the terms of the plea аgreement covering both indictments, explained both the trial and appeal rights that defendant was waiving and speсifically confirmed that defendant‘s right to appeal was “separate and distinct” from those rights he was waiving as pаrt of the plea and sentence agreement and that it meant he would “be giving up [his] right to appeal both the pleas and the sentences to a higher court.” Defendant unequivocally acknowledged that he had conferred with his attorney, signed the written appeal waiver and indicated that he understood the consequences of his pleа and waiver. In our view, the record amply demonstrates that defendant knowingly, voluntarily and intelligently waived the right to apрeal his conviction and sentence (see People v Sanders, 25 NY3d 337, 340-341 [2015]; People v Bradshaw, 18 NY3d at 264; People v Turner, 126 AD3d 1228, 1229 [2015]; People v Sibounhome, 125 AD3d 1059, 1059 [2015]).
Defendant also contends that his guilty plea was involuntary. Generally, suсh a claim survives an appeal waiver and may be considered where, as here, it is preserved by a motion to withdraw the plea (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Miner, 120 AD3d 1449, 1449 [2014]). On this appeal, although defendant concedes that his pro se motion did not include a request for the appointment of substitute counsel, he claims that County Court was obligated to consider appointing substitute counsel because the gravamen of his motion was that he did not receive the effective assistance of counsel before he agreed to plead guilty.
We are unable to conclude that County Court abused its
As to the merits of the motion to vacate the plea, our review of the plea colloquy confirms that defendant understood the terms of the plea agreement and that his acceptance of such terms was knowing, voluntаry and intelligent (see People v Tyrell, 22 NY3d 359, 365 [2013]; People v Howard, 119 AD3d 1090, 1090-1091 [2014], lv denied 24 NY3d 961 [2014]). We further find that nothing in the record casts doubt upon counsel‘s effectiveness, and counsel negotiated a favorable plea deal (see People v Jackson, 128 AD3d 1279, 1280 [2015]). Defendant‘s remaining claims, including his claim that the sentence imposed was harsh and excessive, are precluded by the valid appeal waiver (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Jackson, 128 AD3d at 1280).
McCarthy, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment is affirmed.