Calendar Date: May 2, 2018Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Rumsey, JJ.__________John R. Trice, Elmira, for appellant.Matthew VanHouten, District Attorney, Ithaca (Eliza R.Filipowski of counsel), for respondent.__________Lynch, J.Appeal from a judgment of the County Court of TompkinsCounty (Cassidy, J.), rendered October 2, 2016, convictingdefendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the third degree.
Pursuant to a plea agreement that was embodied in a pleamemorandum,1 defendant waived indictment and pleaded guilty tothe reduced charge of criminal possession of a controlledsubstance in the third degree as charged in a superior courtinformation. The agreement, which required a waiver of appeal,satisfied numerous drug-related charges. Consistent with theagreement, County Court sentenced defendant, as an admittedpredicate felony offender, to a prison term of five years withthree years of postrelease supervision. Defendant appeals.We affirm. Contrary to defendant’s contention, we findthat his waiver of appeal is valid. A waiver of appeal wasincluded in the plea memorandum, which the parties discussed at aconference with County Court and defendant and defense counselsigned at a preplea proceeding; defendant also had an opportunityto review the memorandum with counsel during the plea allocution.Before accepting defendant’s guilty plea, the court explained themeaning of an appeal, made clear that the waiver of appeal wasnot an automatic consequence of the guilty plea and ascertainedthat defendant wished to accept the terms of the plea agreement.At the end of the plea allocution, defendant and defense counselsigned a detailed written waiver of appeal in open court, whichthey reaffirmed by again signing it following sentencing.2 Whiledefendant never confirmed on the record that he had read andreviewed the written waiver of appeal with counsel, which is thebetter practice, we find that, considering the circumstancessurrounding the waiver and defendant’s experience, the recordestablishes that the waiver of appeal was knowing, voluntary andintelligent (see People v Sanders, 25 NY3d 337, 341 [2015];People v Lopez, 6 NY3d 248, 256 [2006]; People v Nichols, 155AD3d 1186, 1187 [2017]; People v Empey, 144 AD3d 1201, 1202-1203[2016], lv denied 28 NY3d 144 [2017]). Defendant’s valid appeal Waiver forecloses his challenge to the sentence as harsh and excessive (see People v Pacherille, 25 NY3d 1021, 1023 [2015]; People v Lopez, 6 NY3d at 256; People v Nichols, 155 AD3d at1187).
