                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 4, 2014                   105979
________________________________

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

ANDREW J. YAW,
                    Appellant.
________________________________


Calendar Date:   August 21, 2014

Before:   McCarthy, J.P., Garry, Egan Jr., Lynch and Clark, JJ.

                             __________


     Paul J. Connolly, Delmar, for appellant.

      Joseph G. Fazzary, District Attorney, Watkins Glen (John C.
Tunney of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the County Court of Schuyler
County (Morris, J.), rendered February 14, 2013, convicting
defendant upon his plea of guilty of the crimes of assault in the
first degree and assault in the second degree.

      During an argument on February 1, 2012, defendant struck
his father in the head with a metal tool causing life threatening
injuries, and was thereafter indicted for, among other crimes,
attempted murder in the second degree. In satisfaction of those
charges and any future charges related thereto, defendant
accepted a plea agreement pursuant to which he pleaded guilty to
assault in the first degree and waived his right to appeal. As
part of the same plea agreement, defendant simultaneously pleaded
guilty to assault in the second degree under another two-count
                              -2-                105979

indictment stemming from assaults he committed while in jail on
the murder charge. As relevant here, he was sentenced, as
agreed, to a 20-year prison term on the first degree assault
conviction with five years of postrelease supervision. He now
appeals, challenging only the assault in the first degree
conviction.

      Defendant argues that an appeal waiver concerning the
sentence was not part of the plea agreement, that the waiver was
not valid and did not encompass his right to challenge the
sentence as harsh and excessive, and that the oral and written
waivers were contradictory. Contrary to his contentions, the
plea proceedings reflect that defendant was repeatedly advised,
without qualification, that an appeal waiver was part of the
agreement, and defense counsel confirmed that he reviewed the
plea terms with him, including the negotiated sentence and the
appeal waiver; County Court explained the meaning of an appeal
waiver and made clear that it was not automatic but, rather, was
separate and distinct from the other plea terms and that he would
be required to sign a written waiver at sentencing. Defendant
indicated that he understood this right and freely agreed to
"give up [his] right to appeal in exchange for the plea and
sentence promised to [him]." At sentencing, defense counsel
stated that he had "gone over the waiver of the right to appeal"
with defendant, answered his questions and that he understood it,
which defendant confirmed. Defendant signed the written waiver
in open court, confirming that he had agreed to it and had
discussed it with his attorney. Thus, the record reflects that
defendant was fully advised that the combined oral and written
appeal waivers were part of the plea agreement and that they were
agreed to knowingly, voluntarily and intelligently (see People v
Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d
248, 255-256 [2006]).

      Further, there is no support in the record for the
conclusion that the appeal waiver was limited so as to permit an
appeal of the sentence. Defendant explicitly waived his appeal
rights without qualification during the allocution, and his
written appeal waiver clearly stated that it covered "all rights
to appeal from the judgment of conviction . . . and the sentence
imposed" (see People v Maracle, 19 NY3d 925, 926-928 [2012];
                              -3-                  105979

People v Hidalgo, 91 NY2d 733, 735-737 [1998]; People v Fling,
112 AD3d 1001, 1002 [2013], lv denied ___ NY3d ___ [June 9,
2014]). Likewise, while the written appeal waiver was more
detailed, it did not contradict the oral colloquy and, in any
event, this claim is unpreserved as it was not raised at
sentencing (see CPL 470.05 [2]). Defendant's valid waiver of the
right to appeal his conviction and sentence "precludes any claim
that we should exercise our interest of justice jurisdiction and
reduce the [agreed-upon] sentence" (People v Boone, 101 AD3d
1358, 1359 [2012], lv denied 20 NY3d 1096 [2013]; see People v
Foote, 102 AD3d 1056, 1057 [2013], lvs denied 20 NY3d 1098, 1102
[2013]).

     McCarthy, J.P., Garry, Egan Jr. and Clark, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
