People v. McCall

Appellate Division of the Supreme Court of New York

People v. McCall

146 A.D.3d 1156, 44 N.Y.S.3d 795, 2017 NY Slip Op 00346

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 19, 2017

Docket107376

StatusPublished

Cited by11 cases

This text of 146 A.D.3d 1156 (People v. McCall) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. McCall, 146 A.D.3d 1156, 44 N.Y.S.3d 795, 2017 NY Slip Op 00346 (N.Y. Ct. App. 2017).

Pincite

Opinion

Garry, J.

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered February 11, 2015 in Albany County, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

*1157 Defendant pleaded guilty to criminal sale of a controlled substance in the third degree in full satisfaction of a three-count indictment, and the plea agreement also included the waiver of the right to appeal. Supreme Court sentenced defendant, as a second felony offender, to 5V2 years in prison and three years of postrelease supervision. Defendant appeals.

We affirm. Initially, we reject defendant’s contention that his waiver of the right to appeal was invalid. The record discloses that Supreme Court distinguished the right to appeal from the rights automatically forfeited by a guilty plea and defendant affirmed his understanding of the waiver. Defendant also signed a written waiver after conferring with counsel regarding its contents. Accordingly, defendant’s waiver of the right to appeal his conviction and sentence was knowing, intelligent and voluntary (see People v Miller, 137 AD3d 1485, 1485 [2016]; People v Clark, 135 AD3d 1239, 1239-1240 [2016], lv denied 27 NY3d 995 [2016]). Defendant’s valid appeal waiver precludes his claim that his sentence is harsh and excessive (see People v Woods, 141 AD3d 954, 955 [2016], lv denied 28 NY3d 1076 [2016]; People v Mann, 140 AD3d 1532, 1533 [2016]).

Defendant also claims that his plea was not knowingly, intelligently and voluntarily entered because Supreme Court did not inform him of the sentencing range he would be exposed to if he rejected the plea offer and went to trial. We cannot say that defendant, who has a lengthy criminal record, was unaware that he could be exposed to a prison sentence if he rejected the plea offer and was found guilty following a trial on this indictment. In our view, defendant had ample opportunity to either raise this issue in an objection during these proceedings or in a motion to withdraw his plea and, therefore, he was required to preserve this claim (see People v Williams, 27 NY3d 212, 221-222 [2016]; People v Crowder, 24 NY3d 1134, 1136-1137 [2015]; People v White, 142 AD3d 1254, 1255 [2016], lv denied 28 NY3d 1128 [2016]).

Peters, P.J., Rose, Devine and Mulvey, JJ., concur.

Ordered that the judgment is affirmed.

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Garry, J.

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered February 11, 2015 in Albany County, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

*1157 Defendant pleaded guilty to criminal sale of a controlled substance in the third degree in full satisfaction of a three-count indictment, and the plea agreement also included the waiver of the right to appeal. Supreme Court sentenced defendant, as a second felony offender, to 5V2 years in prison and three years of postrelease supervision. Defendant appeals.

We affirm. Initially, we reject defendant’s contention that his waiver of the right to appeal was invalid. The record discloses that Supreme Court distinguished the right to appeal from the rights automatically forfeited by a guilty plea and defendant affirmed his understanding of the waiver. Defendant also signed a written waiver after conferring with counsel regarding its contents. Accordingly, defendant’s waiver of the right to appeal his conviction and sentence was knowing, intelligent and voluntary (see People v Miller, 137 AD3d 1485, 1485 [2016]; People v Clark, 135 AD3d 1239, 1239-1240 [2016], lv denied 27 NY3d 995 [2016]). Defendant’s valid appeal waiver precludes his claim that his sentence is harsh and excessive (see People v Woods, 141 AD3d 954, 955 [2016], lv denied 28 NY3d 1076 [2016]; People v Mann, 140 AD3d 1532, 1533 [2016]).

Defendant also claims that his plea was not knowingly, intelligently and voluntarily entered because Supreme Court did not inform him of the sentencing range he would be exposed to if he rejected the plea offer and went to trial. We cannot say that defendant, who has a lengthy criminal record, was unaware that he could be exposed to a prison sentence if he rejected the plea offer and was found guilty following a trial on this indictment. In our view, defendant had ample opportunity to either raise this issue in an objection during these proceedings or in a motion to withdraw his plea and, therefore, he was required to preserve this claim (see People v Williams, 27 NY3d 212, 221-222 [2016]; People v Crowder, 24 NY3d 1134, 1136-1137 [2015]; People v White, 142 AD3d 1254, 1255 [2016], lv denied 28 NY3d 1128 [2016]).

Peters, P.J., Rose, Devine and Mulvey, JJ., concur.

Ordered that the judgment is affirmed.

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Bluebook (online)

146 A.D.3d 1156, 44 N.Y.S.3d 795, 2017 NY Slip Op 00346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mccall-nyappdiv-2017.

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