State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 107537 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

ISIAH GILBERT, Also Known as

PRETTY,

Appellant.

________________________________

Calendar Date: October 17, 2016

Before: Egan Jr., J.P., Rose, Clark, Mulvey and Aarons, JJ.

__________

G. Scott Walling, Schenectady, for appellant.

P. David Soares, District Attorney, Albany (Brittany L.

Grome of counsel), for respondent.

__________

Rose, J.

Appeal from a judgment of the Supreme Court (McDonough,

J.), rendered March 27, 2015 in Albany County, convicting

defendant upon his plea of guilty of the crime of attempted

criminal sale of a controlled substance in the third degree.

Pursuant to a negotiated plea agreement, defendant pleaded

guilty to attempted criminal sale of a controlled substance in

the third degree and waived his right to appeal. The plea

agreement included a commitment from Supreme Court that it would

not impose a sentence of more than five years in prison and three

years of postrelease supervision. However, when defendant failed

to appear at sentencing and violated other conditions of the plea

agreement, the court imposed an enhanced sentence of 61⁄2 years in
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prison followed by three years of postrelease supervision. 

Defendant appeals.

Defendant first contends that his plea was not knowingly,

voluntarily and intelligently entered because, at the time he

accepted the plea bargain, he was unaware that Supreme Court

would require him to waive his right to appeal. Defendant's

contention is misplaced, however, as it does not impact the

voluntariness of his plea but, instead, implicates only the

validity of the appeal waiver itself. In this regard, the record

reflects that, "[a]lthough the appeal waiver was not mentioned

when the terms of the plea agreement were initially placed on the

record," defendant was informed during the plea colloquy, and

prior to pleading guilty, that a waiver of the right to appeal

was part of the plea bargain (People v Johnson, 106 AD3d 1331,

1332 [2013], lvs denied 21 NY3d 1016, 1019 [2013]). The record

further reflects that Supreme Court sufficiently explained the

distinct rights forfeited by the waiver, defendant conferred with

his counsel concerning the waiver, orally waived his right to

appeal and executed a written waiver in open court (see People v

Samuel, 143 AD3d 1012, 1012 [2016]; compare People v Middleton,

72 AD3d 1336, 1337 [2010]). In light of this, we find that

defendant's appeal waiver is valid.

Defendant next contends that Supreme Court erred in

imposing an enhanced sentence because the record does not reflect

that he was advised of the conditions that, if violated, would

subject him to an enhanced sentence.1 While defendant's valid

appeal waiver does not preclude defendant from raising this

contention, it is, nonetheless, unpreserved for our review (see

People v Rushlow, 137 AD3d 1482, 1483 [2016]; People v Tole, 119

AD3d 982, 984 [2014]). Were we to consider it in any event, a

review of the plea minutes establishes that Supreme Court

adequately set forth the conditions that would result in both the

plea agreement being "broken" and an enhanced sentence. During

sentencing, defendant expressly acknowledged that, at the time of

the plea, he was aware of three conditions – specifically, that

1 We reject defendant's contention that this argument also

implicates the voluntariness of his plea.
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he would cooperate with law enforcement by assisting them with

investigations, cooperate with the Probation Department and

appear at the originally scheduled sentencing date – and that he

did, in fact, violate those conditions. Accordingly, were this

issue before us, we would find it to be without merit (see People

v Thomas, 81 AD3d 997, 997 [2011], lv denied 16 NY3d 900 [2011];

compare People v Tole, 119 AD3d at 984). "Finally, defendant's

challenge to his enhanced sentence as harsh and excessive is

precluded by his valid waiver of the right to appeal inasmuch as

[Supreme] Court advised him of the consequences of violating the

conditions of his plea" (People v Lester, 141 AD3d 951, 954

[2016] [internal quotation marks and citations omitted]).

Defendant's remaining contentions are unpreserved for our

review.

Egan Jr., J.P., Clark, Mulvey and Aarons, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court