State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 13, 2014 106122
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
STEVEN M. BRADY,
Appellant.
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Calendar Date: October 9, 2014
Before: Stein, J.P., Garry, Rose, Lynch and Devine, JJ.
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Paul J. Connolly, Delmar, for appellant.
James A. Murphy III, District Attorney, Ballston Spa (Ann
C. Sullivan of counsel), for respondent.
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Lynch, J.
Appeal from a judgment of the County Court of Saratoga
County (Scarano, J.), rendered May 10, 2013, convicting defendant
upon his plea of guilty of the crime of attempted criminal sale
of a controlled substance in the third degree.
Defendant was charged in a three-count indictment with
various drug-related crimes as the result of his sale of cocaine
to an individual in the Town of Halfmoon, Saratoga County.
Similar charges were also filed against defendant in Rensselaer
County in connection with other drug sales. In satisfaction of
the indictment, defendant pleaded guilty to attempted criminal
sale of a controlled substance in the third degree and waived his
right to appeal. Under the terms of the plea agreement,
defendant was to be sentenced as a second felony offender to four
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years in prison, to be followed by a period of postrelease
supervision ranging from 1½ to 3 years. The sentence was to run
concurrently to the sentence imposed by Rensselear County Court
in connection with the charges pending there. Defendant was
sentenced in accordance with the plea agreement and a three-year
period of postrelease supervision was imposed. He now appeals.
Initially, contrary to defendant's claim, we find that
defendant entered a valid waiver of the right to appeal.
Although County Court ambiguously stated that the waiver
forfeited defendant's right to appeal "either the plea or
sentence," the written waiver, which defendant executed in open
court, clarified that it encompassed the plea as well as the
sentence and defendant indicated that he had discussed it with
counsel and understood the consequences of the waiver (see People
v Fling, 112 AD3d 1001, 1002 [2013], lv denied 23 NY3d 1020
[2014]). Moreover, County Court properly advised defendant that
his waiver of the right to appeal was separate and distinct from
the other rights that he was forfeiting by pleading guilty (see
People v Lopez, 6 NY3d 248, 256 [2006]; People v Fate, 117 AD3d
1327, 1328 [2014]). Accordingly, under the circumstances
presented, we find that the waiver was knowing, voluntary and
intelligent (see People v Lopez, 6 NY3d at 256; People v Fligger,
117 AD3d 1343, 1344 [2014], lv denied 23 NY3d 1061 [2014]).
Defendant maintains that County Court failed to comply with
an important condition of the plea agreement, which was that his
sentence include a provision that he serve time in the Willard
drug treatment program just as Rensselear County Court had
directed as part of the sentence it imposed. Based upon this, he
argues that his guilty plea was not voluntary. Although
defendant's waiver of his right to appeal does not preclude him
from challenging the voluntariness of his guilty plea, he has
failed to preserve this claim for review by making an appropriate
postallocution motion or by objecting at the sentencing (see
People v Tole, 119 AD3d 982, 983 [2014]; People v Fate, 117 AD3d
at 1328; People v Haynes, 14 AD3d 789, 790-791 [2005], lv denied
4 NY3d 831 [2005]). In any event, there is no support in the
record for defendant's assertion that the plea agreement
implicitly included a provision that, upon his incarceration,
defendant would participate in the Willard drug treatment
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program. To the contrary, County Court specifically made it
clear that this was not a component of the sentence, a point
expressly acknowledged by defense counsel. Lastly, defendant's
challenge to the severity of the sentence is precluded by his
valid waiver of the right to appeal (see People v Fligger, 117
AD3d at 1344; People v Fling, 112 AD3d at 1002).
Stein, J.P., Garry, Rose and Devine, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court