People v Marable |
2018 NY Slip Op 06152 [164 AD3d 1542] |
September 20, 2018 |
Appellate Division, Third Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
The People of the State of New York,
Respondent, v Michael Marable, Appellant. |
Arthur G. Dunn, Troy, for appellant.
Barbara D. Underwood, Attorney General, New York City (Nikki Kowalski of counsel), for respondent.
Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered December 22, 2015, which revoked defendant's probation and imposed a sentence of imprisonment.
Defendant and multiple codefendants were charged in a 261-count indictment with various
crimes arising from a large-scale drug trafficking operation. In satisfaction thereof, defendant
pleaded guilty to attempted criminal sale of a controlled substance in the third degree and was
sentenced to five years of probation. He was subsequently charged with violating the conditions
of his probation. He entered an admission to the probation violations and waived his right to
appeal. In exchange, County Court agreed to adjourn the proceedings to permit defendant to
demonstrate compliance with the conditions of probation and, if he did so, he would be
resentenced to time served and his probation would be restored. If he did not, his probation
would be revoked and he would be resentenced to a term of imprisonment, the maximum of
which was 5
Defendant contends that his appeal waiver is invalid and does not preclude him from challenging the severity of the resentence. We disagree. The record reveals that defendant waived his right to appeal specifically with respect to the disposition of the probation violations, which extended to all matters pertaining to resentencing. Moreover, County Court advised defendant of the separate and distinct nature of the waiver and ascertained that he understood its ramifications. Furthermore, after conferring with counsel, defendant executed a written waiver in open court that encompassed "any issues regarding the sentence being harsh and/or excessive." Under these circumstances, we find that the appeal waiver is valid and forecloses any claim that the resentence is harsh and excessive (see People v Rogers, 162 AD3d 1410 [2018]; People v Tucker, 161 AD3d 1481, 1482 [2018], lv denied 31 NY3d 1153 [2018]).
[*2] Egan Jr., J.P., Devine, Clark, Aarons and Rumsey, JJ., concur. Ordered that the judgment is affirmed.