People v. Vaillent

Appellate Division of the Supreme Court of New York

People v. Vaillent

74 A.D.3d 409, 900 N.Y.S.2d 872

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

DecidedJune 1, 2010

StatusPublished

Cited by1 cases

This text of 74 A.D.3d 409 (People v. Vaillent) 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. Vaillent, 74 A.D.3d 409, 900 N.Y.S.2d 872 (N.Y. Ct. App. 2010).

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Opinion

Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered October 10, 2008, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as . a second felony drug offender whose prior felony conviction was a violent felony, to a term, of five years, unanimously affirmed.

Defendant made a valid waiver of the right to appeal that forecloses his excessive sentence claim. Although the court’s colloquy with defendant failed to make clear that the right to appeal is separate from the rights automatically forfeited upon a guilty plea (see People v Williams, 59 AD3d 339 [2009], lv denied 12 NY3d 861 [2009]), defendant also signed a waiver, and acknowledged on the record that he had understood it and discussed it with counsel. The written waiver cured any ambi[410]*410guity in the court’s inquiry and is enforceable (see People v Ramos, 7 NY3d 737 [2006]). As an alternative holding, we perceive no basis for reducing the sentence.

Defendant also claims the court improperly calculated the 10-year qualifying period for his predicate felony from the date of a resentencing. While this claim survives the appeal waiver, we reject it on the merits (see People v Jackson, 174 Misc 2d 105 [Sup Ct, NY County 1997]). Concur—Gonzalez, P.J., Sweeny, Acosta, Renwick and Román, JJ.

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Judgment, Supreme Court, New York County (Lewis Bart Stone, J.), rendered October 10, 2008, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as . a second felony drug offender whose prior felony conviction was a violent felony, to a term, of five years, unanimously affirmed.

Defendant made a valid waiver of the right to appeal that forecloses his excessive sentence claim. Although the court’s colloquy with defendant failed to make clear that the right to appeal is separate from the rights automatically forfeited upon a guilty plea (see People v Williams, 59 AD3d 339 [2009], lv denied 12 NY3d 861 [2009]), defendant also signed a waiver, and acknowledged on the record that he had understood it and discussed it with counsel. The written waiver cured any ambi[410]*410guity in the court’s inquiry and is enforceable (see People v Ramos, 7 NY3d 737 [2006]). As an alternative holding, we perceive no basis for reducing the sentence.

Defendant also claims the court improperly calculated the 10-year qualifying period for his predicate felony from the date of a resentencing. While this claim survives the appeal waiver, we reject it on the merits (see People v Jackson, 174 Misc 2d 105 [Sup Ct, NY County 1997]). Concur—Gonzalez, P.J., Sweeny, Acosta, Renwick and Román, JJ.

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Bluebook (online)

74 A.D.3d 409, 900 N.Y.S.2d 872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-vaillent-nyappdiv-2010.

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