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People v. Johnson

137 A.D.3d 1419 Court N.Y. App. Div. Decision date 2016-03-17 English

Judges McCarthy, J.P., Garry, Lynch and Clark, JJ., concur.

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p. 1419
The People of the State of New York, Respondent, v Fernando D. Johnson, Appellant.
[28 NYS3d 134]

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.

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

p. 1420
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 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.

Ordered that the judgment is affirmed.

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