                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 13, 2014                   106002
________________________________

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

KEVIN M. HANDLY,
                    Appellant.
________________________________


Calendar Date:   September 16, 2014

Before:   Lahtinen, J.P., Stein, Egan Jr., Devine and Clark, JJ.

                             __________


     Dean C. Schneller, Plattsburgh, for appellant.

      Derek P. Champagne, District Attorney, Malone (Glenn
MacNeill of counsel), for respondent.

                             __________


      Appeal from a judgment of the County Court of Franklin
County (Main Jr., J.), rendered May 13, 2013, which revoked
defendant's probation and imposed a sentence of imprisonment.

      In 2010, defendant was convicted upon his guilty plea of
two counts of criminal sale of a controlled substance in the
third degree in satisfaction of a four-count indictment stemming
from his sale of crack cocaine on two occasions. He was
sentenced to concurrent terms of five years of probation, the
first 18 months to be served in jail. In March 2013, a violation
of probation petition was filed alleging that he had violated
conditions of his probation. At the hearing, defendant admitted
violating several conditions of probation and agreed to waive his
right to appeal in exchange for promised concurrent sentences of
no more than six years, with postrelease supervision of between
                              -2-                106002

one and two years.1 County Court thereafter revoked defendant's
probation and sentenced him to concurrent prison terms of five
years, with two years of postrelease supervision. Defendant
appeals.

      We affirm. Defendant's challenge to his sentence as harsh
and excessive is precluded by his valid appeal waiver, which he
does not challenge as other than knowing, voluntary and
intelligent (see People v Bradshaw, 18 NY3d 257, 264-265 [2011];
People v Lopez, 6 NY3d 248, 256 [2006]; People v Young, 112 AD3d
1068, 1068-1069 [2013], lv denied 22 NY3d 1204 [2014]; People v
Ryan, 38 AD3d 1055, 1055-1056 [2007]). Defendant's only
contention regarding the oral appeal waiver is that it is not
valid because he did not also sign a written appeal waiver. This
is incorrect, as an oral appeal waiver may, if adequate, suffice
(see People v Lopez, 6 NY3d at 257; People v Hidalgo, 91 NY2d 733
[1998]; People v Shurock, 83 AD3d 1342, 1342-1343 [2011]; People
v Smith, 81 AD3d 1034, 1035 [2011], lv denied 16 NY3d 899 [2011];
People v Mattison, 74 AD3d 1495, 1495-1496 [2010], lv denied 15
NY3d 922 [2010]). The record reflects that, during the
allocution to the violation of probation, County Court explained
the nature of the right to appeal, ascertained that defendant had
discussed the appeal waiver with counsel and permitted counsel a
brief break to discuss it further; counsel represented that he
had discussed it with defendant and that he understood it, and
defendant agreed to waive his right to appeal. Given the valid
appeal waiver, and that the court abided by its sentencing
promise, defendant has relinquished the right to challenge that
sentence as harsh and excessive (see People v Lopez, 6 NY3d at
255-256).




    1
        Specifically, defendant admitted having recently used
marihuana, falsely representing during a urine drug screen that
he did not possess "clean" (or counterfeit) urine when he did
possess same, and that his self-employment did not constitute the
verifiable full-time employment required by the terms of his
probation.
                              -3-                  106002

      Lahtinen, J.P., Stein, Egan Jr., Devine and Clark, JJ.,
concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
