                           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
                              -2-                107110

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
                              -3-                  107110

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
