                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 21, 2016                      106957
________________________________

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

DANIEL W. LESTER,
                    Appellant.
________________________________


Calendar Date:   May 31, 2016

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

                              __________


     Susan Betzjitomir, Bath, for appellant.

      Mary E. Rain, District Attorney, Canton (Marquetta Christy
of counsel), for respondent.

                              __________


Egan Jr., J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered July 7, 2014, convicting
defendant upon his plea of guilty of the crime of vehicular
manslaughter in the first degree.

      Defendant waived indictment and agreed to be prosecuted
pursuant to a superior court information charging him with
vehicular manslaughter in the first degree and driving while
ability impaired by drugs. Defendant thereafter pleaded guilty
to vehicular manslaughter in the first degree – in full
satisfaction of both the superior court information and other
potential charges stemming from a December 2013 incident wherein
defendant, while operating a motor vehicle under the influence of
various drugs, struck and killed a bicyclist. The underlying
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plea agreement included a waiver of the right to appeal, and
County Court agreed to impose a prison term of 4 to 12 years and
to release defendant to probation supervision pending sentencing
– subject to certain terms and conditions. Such terms and
conditions included, insofar as is relevant here, that defendant
refrain from taking any prescription medications that had not in
fact been prescribed for him, "abide by a curfew and be in [his]
established residence between the hours of 9:00 p.m. and 6:00
a.m. daily" and submit to random drug testing. In this regard,
defendant expressly advised County Court that he was only taking
two prescribed medications – Gabapentin and Hydrochlorothiazide.
County Court, in turn, advised defendant that any additional
prescription medications had to be approved by the Probation
Department before such prescriptions could be filled. County
Court also warned defendant that if he "br[oke] the rules" and
violated any of the terms imposed by the court or the Probation
Department, the court would not be bound by the terms of the plea
agreement and could sentence defendant to up to 15 years in
prison.

      Following a brief recess in the proceedings, defendant was
returned to court because he tested positive for Suboxone.
Although defendant had not disclosed that he had a prescription
for this particular medication during his prior colloquy with
County Court, defense counsel subsequently represented that
defendant did have a valid prescription for this drug but
"unilaterally decided to stop taking it and flushed it"
approximately two weeks earlier. Defendant confirmed counsel's
understanding, stating, "I just decided to quit taking it."
Despite defendant's initial failure to disclose this medication
and his subsequent failed drug test, County Court continued
defendant's release under supervision – reminding him of his
obligation to test negative for unauthorized drug use.

      Approximately one month later, the Probation Department
filed a uniform court report alleging that defendant violated the
terms of his release by violating his curfew and twice testing
positive for Suboxone. A bench warrant was issued and, after
County Court found that defendant had violated the terms and
conditions of his release, defendant was remanded to the local
jail pending sentencing. County Court thereafter imposed an
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enhanced sentence of 5 to 15 years in prison, prompting this
appeal.

      We affirm. Initially, we reject defendant's challenge to
the validity of his waiver of the right to appeal. As the Court
of Appeals recently reiterated, "a trial court need not engage in
any particular litany when apprising a defendant pleading guilty
of the individual rights abandoned" (People v Sanders, 25 NY3d
337, 341 [2015] [internal quotation marks and citation omitted]).
Rather, all that is required is "that defendant's full
appreciation of the consequences and understanding of the terms
and conditions of the plea, including a waiver of the right to
appeal, are apparent on the face of the record" (id. at 340
[internal quotation marks and citation omitted]). Here, as
reflected in the plea colloquy, County Court explained that
defendant's right to appeal was separate and distinct from the
other rights forfeited in connection with his plea (see People v
Rushlow, 137 AD3d 1482, 1483 [2016]; People v Creighton, 137 AD3d
1328, 1328-1329 [2016]; compare People v Gonzalez, 138 AD3d 1353,
1354 [2016]). Additionally, the record contains a signed,
written waiver of the right to appeal, a portion of which County
Court read aloud to defendant during the plea allocution, and
defendant confirmed that he understood what rights he was "giving
up" and what rights he could not "give up" by executing the
subject waiver (see People v Brown, 119 AD3d 980, 981 [2014], lv
denied 24 NY3d 959 [2014]; People v Carbone, 101 AD3d 1232, 1233
[2012]). "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 Belile,
137 AD3d 1460, 1461 [2016] [internal quotation marks, brackets
and citations omitted]).

      As for defendant's claim that his plea necessarily was
involuntary given that he tested positive for Suboxone shortly
after his allocution, this issue is unpreserved for our review
absent an appropriate postallocution motion (see People v
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Guyette, 121 AD3d 1430, 1431 [2014], lv denied 27 NY3d 998
[2016]). Moreover, "[d]efendant made no statements during the
plea colloquy that would bring this matter within the narrow
exception to the preservation requirement" (People v Butler, 134
AD3d 1349, 1350 [2015] [internal quotation marks and citation
omitted], lvs denied 27 NY3d 962, 963 [2016]). Finally,
defendant expressly acknowledged that had not "taken any
medications or drugs, legal or otherwise," within the 24 hours
preceding his plea allocution, and nothing in the record before
us either casts doubt upon defendant's ability to understand the
nature of the proceedings (see People v Jenks, 69 AD3d 1120, 1121
[2010], lv denied 14 NY3d 841 [2010]) or suggests a need for
further inquiry by County Court (cf. People v Stover, 123 AD3d
1232, 1233 [2014], lv denied 26 NY3d 936 [2015]).

      With respect to the enhanced sentence imposed, although
this issue has been sufficiently preserved for our review, we
find it to be lacking in merit. A court may not impose an
enhanced sentence unless, as is relevant here, "it has informed
the defendant of specific conditions that the defendant must
abide by or risk such enhancement" (People v Tole, 119 AD3d 982,
984 [2014], lv denied 19 NY3d 968 [2012]). As noted previously,
defendant was expressly advised that he could not take any
prescription medications that had not been prescribed for him,
that any additional prescription medications – other than the two
medications disclosed to County Court, which did not include
Suboxone – had to be approved by the Probation Department before
such prescriptions could be filled and that he had to "abide by a
curfew and be in [his] established residence between the hours of
9:00 p.m. and 6:00 a.m. daily." In response to the alleged
violations, defendant did not dispute that he continued to take
Suboxone and, further, had spent the night at the home of a
female friend – arguing instead that such conduct did not amount
to a violation of the terms and conditions of his release. As
defendant and counsel were afforded an opportunity to contest the
alleged violations (see People v Albergotti, 17 NY3d 748, 750
[2011]) and the record otherwise establishes that defendant did
not comply with the terms and conditions of his release, we
cannot say that County Court abused its discretion in imposing an
enhanced sentence (cf. People v Waite, 119 AD3d 1086, 1087-1088
[2014]). "Finally, defendant's challenge to his enhanced
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sentence as harsh and excessive is precluded by his valid waiver
of the right to appeal inasmuch as County Court advised him of
the consequences of violating the conditions of his plea" (People
v Perkins, 125 AD3d 1045, 1047 [2015] [citation omitted]).
Defendant's remaining arguments, to the extent not specifically
addressed, have been examined and found to be lacking in merit.

     Lahtinen, J.P., Lynch, Devine and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
