        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

482
KA 11-01247
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VINNIE B. WEATHER, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


JEREMY D. ALEXANDER, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered August 3, 2010. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated, a
class E felony.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of driving while intoxicated
(DWI) as a class E felony (Vehicle and Traffic Law §§ 1192 [3]; 1193
[1] [c] [former (i)]). In appeal No. 2, defendant appeals from a
judgment convicting him upon his plea of guilty of DWI as a class E
felony (see §§ 1192 [3]; 1193 [1] [c] [i] [A]).

     At the time defendant entered his plea in appeal No. 1, he had
been promised a sentence of incarceration of five months, to run
concurrently with a sentence imposed in Madison County (first plea
agreement). During his plea colloquy, defendant agreed to waive his
right to appeal and was informed that, if he failed to appear for
sentencing or was rearrested before sentencing, County Court (Balzano,
A.J.) would no longer be bound by the sentencing promise. Before
sentencing, defendant was arrested for the charge of DWI in appeal No.
2, and he failed to appear for sentencing in appeal No. 1.

     At the next appearance, the court (Balzano, A.J.), the prosecutor
and defense counsel entered into another agreement pursuant to which
defendant would enter a plea to DWI in appeal No. 2, and the court
would direct that the sentences in appeal Nos. 1 and 2 run
concurrently with each other and with the sentence imposed in Madison
County (second plea agreement). Defendant agreed to enter into the
second plea agreement, but the matter was adjourned to enable the
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                                                         KA 11-01247

prosecutor to prepare a superior court information in appeal No. 2.

     In the interim, the cases were transferred to County Court
(Donalty, J.). When defendant appeared for sentencing in appeal No. 1
and to enter a plea and for sentencing in appeal No. 2, the court
informed defendant that it was “not going along with [the second plea
agreement].” The court stated that, if defendant pleaded guilty to
DWI in appeal No. 2, the court would order the sentences in appeal
Nos. 1 and 2 to run concurrently with each other but consecutively to
the sentence imposed in Madison County (third plea agreement).
Although defendant objected, he ultimately entered a plea in appeal
No. 2 and agreed to waive his right to appeal. The court thereafter
sentenced defendant in accordance with the third plea agreement.

      While defendant does not contend that his waivers of the right to
appeal are constitutionally defective or that they should not be
enforced (see generally People v Callahan, 80 NY2d 273, 285; People v
Williams, 191 AD2d 1039, 1040), he contends that they do not encompass
the issues raised by him on appeal. Defendant contends that his
challenge to the sentences survives the waivers of the right to appeal
because he is challenging the legality of the sentences, i.e., “the
legality of the sentence[s] on [their] face, or . . . the power of the
court to impose [them]” (Callahan, 80 NY2d at 281; see People v
Campbell, 97 NY2d 532, 535). We reject that contention. The
sentences at issue on this appeal are legal on their face and,
inasmuch as “[t]he court . . . retains discretion in fixing an
appropriate sentence up until the time of the sentencing” (People v
Schultz, 73 NY2d 757, 758; see People v Sierra, 85 AD3d 1659, 1659, lv
denied 17 NY3d 905), the court had “the power . . . to impose” the
sentences (Callahan, 80 NY2d at 281). Defendant’s challenge therefore
addresses not the legality of the sentences but, rather, the adequacy
of the procedures leading up to sentencing (see Callahan, 80 NY2d at
281).

     While we agree with defendant that the waiver of the right to
appeal in appeal No. 1 does not preclude his contention that the court
(Donalty, J.) erred in failing to abide by the second plea agreement
(see People v Fomby, 42 AD3d 894, 895; People v Stevens, 41 AD3d 1030,
1031; People v Vancise, 302 AD2d 864, 864), we conclude that the
waiver of the right to appeal in appeal No. 2 precludes defendant’s
similar contention in that appeal. At the time defendant waived his
right to appeal in appeal No. 2, he was aware of the terms of the
third plea agreement and had consented to be sentenced in accordance
with that agreement. The waiver of the right to appeal in appeal No.
2 thus encompasses defendant’s challenge to the sentence because all
of the actions being challenged on appeal occurred before defendant
entered his plea and waived his right to appeal. “In view of
defendant’s acceptance of the [third] plea agreement and express
waiver of his right to appeal, he may not now challenge” the court’s
refusal to adhere to the terms of the second plea agreement (People v
Malone, 203 AD2d 622, 623, lv denied 84 NY2d 829).

     Because we conclude that the waiver of the right to appeal in
appeal No. 1 does not preclude our review of the merits of defendant’s
                                 -3-                           482
                                                         KA 11-01247

contention in that appeal, we now address the merits of that
contention. Defendant contends in appeal No. 1 that he is entitled to
specific performance of the second plea agreement. “ ‘The remedy of
specific performance in the context of plea agreements applies where a
defendant has been placed in a no-return position in reliance on the
plea agreement . . . , such that specific performance is warranted as
a matter of essential fairness’ ” (Sierra, 85 AD3d at 1659; see
generally People v McConnell, 49 NY2d 340, 348-349). Inasmuch as
neither the prosecution nor the defense had taken any action on the
second plea agreement between the time of the second plea agreement
and the appearance before Judge Donalty, defendant was not placed in a
“ ‘no-return position’ ” in reliance on the second plea agreement and
is thus not entitled to specific performance of that agreement
(Sierra, 85 AD3d at 1659).




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
