                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 10, 2016                   106860
________________________________

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

DONALD CUOMO,
                    Appellant.
________________________________


Calendar Date:   September 20, 2016

Before:   McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

                             __________


     Robert A. Regan, Glens Falls, for appellant.

      Craig P. Carriero, District Attorney, Malone (Jennifer M.
Hollis of counsel), for respondent.

                             __________


      Appeal from a judgment of the County Court of Franklin
County (Main Jr., J.), rendered May 27, 2014, convicting
defendant upon his plea of guilty of the crime of driving while
intoxicated.

      Defendant pleaded guilty to one count of felony driving
while intoxicated in satisfaction of a three-count indictment.
Pursuant to the plea agreement, which included a waiver of
appeal, County Court agreed to impose a split sentence of no more
than five years of probation with 180 days in jail. The court
thereafter sentenced defendant to five years of probation with
the first 180 days to be served in jail and other terms, and this
appeal ensued.

      Defendant's sole contention on appeal is that the sentence
is harsh and excessive in view of his alcoholism and other
                              -2-                  106860

factors. However, defendant's unchallenged waiver of appeal
precludes this contention (see People v Lopez, 6 NY3d 248, 256
[2006]). County Court explained during the plea colloquy that
defendant would ordinarily retain the right to appeal but that,
as a term of the plea arrangement, he was being required to waive
that right, making clear that the waiver was separate from the
trial-related rights automatically forfeited by his guilty plea
(see People v Lopez, 6 NY3d at 256; People v Clark, 135 AD3d
1239, 1240 [2016], lv denied 27 NY3d 995 [2016]). Defendant then
agreed to waive his right to appeal "all aspects of this
proceeding other than constitutional issues and any violation by
the [c]ourt of its sentencing commitment." The court further
ascertained that defendant, who was 61 years old and had
extensive experience in the criminal justice system, had
discussed the waiver with counsel and understood it, establishing
that it was knowing, voluntary and intelligent (see People v
Sanders, 25 NY3d 337, 340-341 [2015]; People v Lopez, 6 NY3d at
256). Accordingly, as the court abided by its sentencing
commitment, defendant's valid appeal waiver forecloses this
claim.

      McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.,
concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
