People v. Norton

9 A.D.3d 741, 779 N.Y.S.2d 865, 2004 N.Y. App. Div. LEXIS 9913

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 22, 2004
• Status: Published

Opinion

Appeal from a judgment of the County Court of Saratoga County (Scarano, Jr., J.), rendered June 27, 2003, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

Defendant, waiving his right to appeal, pleaded guilty to the crime of attempted criminal sale of a controlled substance in the third degree. In accordance with the plea agreement, defendant was sentenced to a prison term of 3 to 9 years.

We are unpersuaded by defendant’s contention that the waiver of the right to appeal is ineffective due to the catch-all provision purporting to waive all appealable matters defendant may have as of right. Although nonwaivable issues are excluded from the scope of the waiver, the remainder of the waiver is valid and enforceable (see People v Wagoner, 6 AD3d 985 [2004]; People v Umber, 2 AD3d 1051, 1052 [2003], lv denied 2 NY3d 747 [2004]). To that end, defendant’s challenge to the severity of the sentence is not preserved for our review given the knowing, voluntary and intelligent waiver of his right to appeal (see People v Hidalgo, 91 NY2d 733, 737 [1998]; People v Lemons, 6 AD3d 756 [2004]). Were we to consider the merits of the argument, we would find no basis to disturb the sentence imposed despite defendant’s youth and sparse criminal history (see People v Baker, 6 AD3d 751 [2004]; People v Baker, 195 AD2d 700 [1993]). Defendant’s remaining contention has been reviewed and found to be without merit.

Cardona, EJ., Spain, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.