                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 3, 2016                   107221
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

JOHN R. EMPEY,
                    Appellant.
________________________________


Calendar Date:   September 12, 2016

Before:   Egan Jr., J.P., Lynch, Devine, Clark and Mulvey, JJ.

                             __________


      Susan Patnode, Rural Law Center of New York, Castleton
(Kelly L. Egan of counsel), for appellant.

     Gary M. Pasqua, Special Prosecutor, Malone, for respondent.

                             __________


Egan Jr., J.P.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered November 21, 2014, convicting
defendant upon his plea of guilty of the crime of aggravated
driving while intoxicated.

      Defendant, who had eight prior convictions for driving
while intoxicated, waived indictment and agreed to be prosecuted
pursuant to a superior court information charging him with
aggravated driving while intoxicated. Plea discussions ensued
and, in return for his acceptance into the Judicial Diversion
Program (hereinafter JDP) (see CPL 216.05), defendant pleaded
guilty as charged, admitted his status as a persistent felony
offender and waived his right to appeal – both orally and in
writing. Pursuant to the terms of the plea agreement and the
resulting JDP contract, defendant was to be placed on interim
                              -2-                107221

probation for a period of up to two years. If defendant
successfully completed the JDP, he would be sentenced to
"straight probation" for a period of five years; if he did not
successfully complete the JDP, he could be sentenced as a
persistent felony offender to a prison term having a minimum
period of 15 to 25 years and a maximum period of life. At the
conclusion of the plea colloquy, defendant signed a contract
formalizing the terms and conditions of his participation in the
JDP.

      After violating multiple terms and conditions of the JDP
contract, defendant was issued a termination notice. Defendant
thereafter waived his right to a hearing and admitted to certain
violations – including testing positive for oxycodone that had
not been prescribed for him. Following a hearing to determine
whether defendant should be sentenced as a persistent felony
offender (see CPL 400.20), County Court sentenced defendant as
such to a prison term of 15 years to life. Defendant now
appeals.

      Preliminarily, we reject defendant's claim that his waiver
of the right to appeal was not knowing, intelligent and
voluntary. County Court adequately explained the rights that
defendant was forfeiting by pleading guilty – distinguishing the
right to appeal as separate and distinct from the trial rights
that defendant was forgoing – and defendant communicated his
understanding thereof. In addition, defendant signed a detailed
written waiver in open court. "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, considering all of
the relevant facts and circumstances surrounding the waiver,
including defendant's experience, we are satisfied that the oral
colloquy, combined with the written waiver, demonstrate his
understanding and voluntary waiver of his right to appeal"
(People v Lester, 141 AD3d 951, 953 [2016] [internal quotation
marks and citations omitted]).

      Defendant next contends that his guilty plea was not
knowing, intelligent and voluntary because he was not advised of
                              -3-                107221

the specific duration of treatment under the JDP (see CPL 216.05
[5]), which he asserts is a direct consequence of his plea.
Although such claim is not foreclosed by defendant's valid appeal
waiver (see People v Smith, 136 AD3d 1107, 1108 [2016], lv denied
27 NY3d 1075 [2016]), this Court previously has rejected this
very argument – finding that the duration of the treatment
regimen imposed under the JDP "was not an immediate, definite or
automatic result of [the underlying] guilty plea but, rather, was
. . . a collateral consequence of [the] plea subject to the
preservation requirement" (id. at 1108 [internal quotation marks
and citations omitted]). Inasmuch as the record does not reflect
that defendant made an appropriate postallocution motion in this
regard, his argument is not preserved for our review (see People
v LaBaff, 127 AD3d 1471, 1471 [2015], lv denied 26 NY3d 931
[2015]; People v Disotell, 123 AD3d 1230, 1231 [2014], lv denied
25 NY3d 1162 [2015]). Moreover, the narrow exception to the
preservation requirement was not triggered here as defendant made
no statements during the course of the plea colloquy that cast
doubt upon his guilt or otherwise called into question the
voluntariness of his plea (see People v Smith, 136 AD3d at 1108;
People v Sawyer, 135 AD3d 1164, 1165 [2016], lv denied 27 NY3d
1006 [2016]).

      Defendant's remaining contentions do not warrant extended
discussion. Although defendant argues that CPL 400.20 is
unconstitutional, the Court of Appeals considered and rejected
such a claim in People v Quinones (12 NY3d 116 [2009], cert
denied 558 US 821 [2009]), and this Court is bound by that
holding (see People v Jackson, 46 AD3d 1110, 1111 [2007], lv
denied 10 NY3d 766 [2008]) – notwithstanding certain federal
court decisions that defendant urges us to follow. Defendant's
related argument challenging the severity of the sentence imposed
upon him as a persistent felony offender is foreclosed by his
valid waiver of the right to appeal. Finally, defendant's
ineffective assistance of counsel claim has not been preserved
for our review, and we find no merit to defendant's claim that
County Court was biased.

     Lynch, Devine, Clark and Mulvey, JJ., concur.
                        -4-                  107221

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
