State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 24, 2016 107110 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

JOSEPH J. BELILE,

Appellant.

________________________________

Calendar Date: January 14, 2016

Before: McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

__________

Susan Patnode, Rural Law Center of New York, Castleton

(Cynthia Feathers of counsel), for appellant.

Alexander Lesyk, Special Prosecutor, Norwood, for

respondent.

__________

Lynch, J.

Appeal from a judgment of the County Court of St. Lawrence

County (Richards, J.), rendered September 2, 2014, convicting

defendant upon his plea of guilty of the crime of attempted

assault in the second degree.

Following an altercation at the St. Lawrence County

Correctional Facility on August 13, 2013 between defendant, an

inmate and another inmate, defendant was indicted for assault in

the second degree. The victim died of unrelated causes prior to

trial and defendant's ensuing trial resulted in a hung jury. On

the day scheduled for the retrial, defendant accepted a plea

agreement that included a waiver of appeal, whereby he pleaded

guilty to the reduced charge of attempted assault in the second
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degree. The plea agreement also satisfied several unrelated

pending or potential criminal charges for which defendant was in

and out of jail throughout 2013, and required restitution for

each matter. Defendant was thereafter sentenced, consistent with

the plea agreement, to a prison term of 2 to 4 years, as an

admitted second felony offender, restitution was ordered and

orders of protection were issued. Defendant now appeals.

Initially, contrary to defendant's contentions, we find

that his combined oral and written waiver of appeal was knowing,

voluntary and intelligent (see People v Sanders, 25 NY3d 337,

339-341 [2015]; People v Lopez, 6 NY3d 248, 256 [2006]; cf.

People v Bradshaw, 18 NY3d 257, 265 [2011]). The minutes of the

plea proceedings reflect that when the terms of the plea

agreement were outlined, County Court specified that an appeal

waiver was a condition of the deal, and defendant confirmed that

he understood the terms and thereafter agreed, without

qualification, that he was voluntarily waiving his right to

appeal. The court ascertained that defendant understood that he

was giving up his right to appeal, explained the appellate rights

that could not be waived and expressly advised him that the

appeal waiver was separate and distinct from those rights that he

automatically forfeited by his guilty plea (see People v Lopez, 6

NY3d at 256; People v Rubio, 133 AD3d 1041, 1042 [2015]). 

Defendant then executed a written waiver of appeal in open court,

which adequately described the scope of the appellate rights that

he was waiving and included defendant's acknowledgment that he

had sufficient time to discuss the waiver with counsel. While

the better practice would have been for the court to specifically

ask defendant if he had discussed the appeal waiver with counsel

and establish that he had read the written waiver before signing

it (see People v Elmer, 19 NY3d 501, 510 [2012]; People v

Callahan, 80 NY2d 273, 283 [1992]; People v Rabideau, 130 AD3d

1094, 1095 [2015]), considering "all [of] the relevant facts and

circumstances surrounding the waiver," including defendant's

experience (People v Sanders, 25 NY3d at 340 [internal quotation

marks and citation omitted]), we are satisfied that the oral

colloquy, combined with the written waiver, demonstrate his

understanding and voluntary waiver of his right to appeal (see

People v Bradshaw, 18 NY3d at 266-267; People v Ramos, 7 NY3d

737, 738 [2006]). Consequently, the valid appeal waiver
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precludes defendant's challenge to the sentence as harsh and

excessive (see People v Lopez, 6 NY3d at 255-256; People v

Jackson, 129 AD3d 1342, 1342 [2015]).

Next, defendant argues that County Court incorrectly

calculated the expiration date of the permanent orders of

protection by failing to factor in jail time credit (see Penal

Law § 70.30 [3]). While this issue survives the appeal waiver

(see People v Gardner, 129 AD3d 1386, 1387 [2015]), it was not

preserved for our review due to defendant's failure to raise it

before the sentencing court (see People v Nieves, 2 NY3d 310,

316-317 [2004]; People v Hopper, 123 AD3d 1234, 1235 [2014]). 

Defendant may directly address this issue before the trial court,

and, under the circumstances presented, we decline to exercise

our interest of justice jurisdiction to take corrective action. 

Defendant's remaining claims have been reviewed and determined to

lack merit. 

McCarthy, J.P., Garry, Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court