People v. Johnson

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 17, 2016 106757
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
FERNANDO D. JOHNSON,
Appellant.
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Calendar Date: January 19, 2016
Before: McCarthy, J.P., Garry, Lynch and Clark, JJ.
__________
Susan Patnode, Rural Law Center of New York, Castleton
(Kelly L. Egan of counsel), for appellant.
Alexander Lesyk, Special Prosecutor, Norwood, for
respondent.
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Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered March 17, 2014, convicting
defendant upon his plea of guilty of the crime of criminal
possession of a controlled substance in the third degree.
Defendant pleaded guilty to criminal possession of a
controlled substance in the third degree pursuant to a plea
agreement that included a waiver of appeal. The plea satisfied a
two-count indictment, which stemmed from the execution of a
search warrant and discovery of cocaine in defendant's
possession. Defendant admitted his predicate felony conviction
and County Court, as agreed, imposed a prison sentence of six
years with three years of postrelease supervision. This appeal
ensued.
-2- 106757
As a threshold matter, we find that defendant's waiver of
appeal was knowing, voluntary and intelligent (see People v
Lopez, 6 NY3d 248, 256 [2006]; see also People v Sanders 25 NY3d
337, 340-341 [2015]; People v Jackson, 129 AD3d 1342, 1342
[2015]). The record reflects that County Court adequately
explained the right to appeal and that it was separate and
distinct from the other rights automatically forfeited by
defendant's guilty plea, as well as the rights that were not
forfeited by the appeal waiver (see People v Lopez, 6 NY3d at
256; People v Rubio, 133 AD3d 1041, 1042 [2015]). Defendant also
executed a detailed written waiver in open court that described
the scope of the rights being waived and acknowledged that he had
sufficient time to discuss it with counsel, after County Court
confirmed that he understood the written waiver of appeal and was
freely and voluntarily signing it (see People v Ramos, 7 NY3d
737, 738 [2006]; see also People v Bradshaw, 18 NY3d 257, 266-267
[2011]; People v Clapper, 133 AD3d 1037, 1038 [2015]). Given
defendant's valid appeal waiver, his challenge to the sentence as
harsh and excessive is foreclosed (see People v Lopez, 6 NY3d at
256; People v Clapper, 133 AD3d at 1038).
Defendant further contends that County Court erred when it
refused his request, made for the first time at sentencing, for a
sentence of parole supervision that included drug treatment,
pursuant to Penal Law § 70.70 (3) (d) (see CPL 410.91). However,
defendant received the sentence promised by the plea agreement –
a six-year prison sentence with postrelease supervision – and
that agreement did not include any promise by County Court to
consider or recommend drug treatment as an alternative,
discretionary sentence (see People v Brady, 122 AD3d 1009, 1010
[2014], lv denied 25 NY3d 1160 [2015]; People v Patterson, 119
AD3d 1157, 1158 [2014], lv denied 24 NY3d 1042, 1046 [2014]). In
any event, County Court did not err in concluding that a drug
treatment program would not be appropriate or warranted given
defendant's criminal history.
McCarthy, J.P., Garry, Lynch and Clark, JJ., concur.
-3- 106757
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court