People v. Sawyer , 22 N.Y.S.3d 711 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 21, 2016 106265
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
JON J. SAWYER,
Appellant.
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Calendar Date: November 18, 2015
Before: Peters, P.J., Garry, Egan Jr., Rose and Devine, JJ.
__________
John A. Cirando, Syracuse, for appellant.
Mary E. Rain, District Attorney, Canton (Ramy Louis of
counsel), for respondent.
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Rose, J.
Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered October 17, 2013, convicting
defendant upon his plea of guilty of the crimes of grand larceny
in the fourth degree and criminal possession of a forged
instrument in the second degree (six counts).
Defendant was charged by indictment with one count of grand
larceny in the fourth degree, six counts of criminal possession
of a forged instrument in the second degree and one count of
attempted bribing a witness. County Court dismissed the count of
attempted bribing a witness, and defendant pleaded guilty to the
remaining seven counts. During the plea allocution, defendant
also orally waived his right to appeal and executed a written
appeal waiver. After defendant was allowed to complete a drug
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rehabilitation program pursuant to his plea agreement, County
Court sentenced him, as a second felony offender, to an aggregate
prison term of 4 to 8 years. He now appeals.
Defendant first argues that he did not knowingly waive his
right to appeal. Our review of the record reveals, however, that
County Court explained the meaning of the appeal waiver to
defendant, noted that it is separate and distinct from the rights
forfeited by his guilty plea, and ascertained that he understood
it and had no questions about it. Defendant also signed a
written waiver of appeal with the assistance of counsel in open
court. Accordingly, the record amply demonstrates that
defendant's appeal waiver was knowing, voluntary and intelligent
(see People v Lopez, 6 NY3d 248, 256-257 [2006]; People v
Jackson, 129 AD3d 1342, 1342 [2015]; People v Toback, 125 AD3d
1060, 1061 [2015], lv denied 25 NY3d 993 [2015]). Nor can we
agree with defendant's argument that this was a situation in
which he agreed to plead guilty with "'no [return] promise, plea
agreement, reduced charge, or any other bargain or
consideration'" from the People or the court (People v Crump, 107
AD3d 1046, 1047 [2013], lv denied 21 NY3d 1014 [2013], quoting
People v Nicelli, 74 AD3d 1235, 1236 [2010]; see People v Coles,
13 AD3d 665, 666 [2004]). Rather, in exchange for his guilty
plea, defendant was released prior to sentencing and allowed to
seek inpatient drug rehabilitation treatment. The court also
assured defendant that successful completion of such a program
would be taken into consideration at sentencing. Ultimately, the
court credited defendant with full completion of the program and
sentenced him to an aggregate prison term of 4 to 8 years, far
less than the maximum sentence that would have been legally
permissible (see Penal Law §§ 70.06 [3] [d], [e]; 155.30 [1];
170.25).
While defendant's challenge to the voluntariness of his
guilty plea survives his appeal waiver, it is unpreserved for our
review as he failed to make a postallocution motion to withdraw
his plea (see CPL 220.60 [3]; People v Richardson, 132 AD3d 1022,
1023 [2015]; People v Broomfield, 128 AD3d 1271, 1271 [2015]).
Nor does the narrow exception to the preservation requirement
apply here, as the record does not reflect that he "made [any]
statements during the plea allocution that negated an element of
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the crime or otherwise called into doubt his guilt or the
voluntariness of his plea" (People v Richardson, 132 AD3d at
1023; see People v Lopez, 71 NY2d 662, 666 [1988]). Defendant's
remaining arguments are precluded by his valid waiver of appeal.
Peters, P.J., Garry, Egan Jr. and Devine, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court