People v. Moulton , 19 N.Y.S.3d 912 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 10, 2015 106545
106591
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
TYLER J. MOULTON,
Appellant.
________________________________
Calendar Date: October 20, 2015
Before: Peters, P.J., Lahtinen, Garry and Clark, JJ.
__________
Susan Patnode, Rural Law Center of New York, Albany
(Cynthia Feathers of counsel), for appellant.
Mary E. Rain, District Attorney, Canton (A. Michael Gebo of
counsel), for respondent.
__________
Garry, J.
Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered September 30, 2013, (1)
convicting defendant upon his plea of guilty of the crime of
sexual abuse in the first degree, and (2) which revoked
defendant's probation and imposed a sentence of imprisonment.
In 2011, defendant pleaded guilty to sexual abuse in the
first degree for subjecting a nine-year-old girl to sexual abuse
when he was 16 years old; the sentence imposed included a 10-year
term of probation. In 2013, following new sexual abuse
allegations, a petition was filed charging him with violating the
terms of his probation by violating state laws, staying overnight
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106591
in an unapproved residence and being with a child under the age
of 17. Pursuant to a negotiated plea agreement that included a
waiver of appeal, defendant waived indictment and pleaded guilty
to a superior court information charging him with sexual abuse in
the first degree, admitting that he subjected a seven-year-old
girl to sexual contact. As part of this agreement, defendant
also admitted violating his probation as charged. His probation
was revoked and he was sentenced in accordance with the plea
agreement, as a second child sexual assault felony offender (see
Penal Law § 400.19 [2]), to an aggregate prison sentence of 10
years with 15 years of postrelease supervision.1 Defendant
appeals, and we affirm.
Initially, defendant's claim that his guilty plea was not
knowing, voluntary and intelligent, which survives an appeal
waiver, was not preserved by an appropriate postallocution motion
(see People v Johnson, 125 AD3d 1052, 1052 [2015], lv denied 25
NY3d 1073 [2015]; People v Tole, 119 AD3d 982, 983 [2014], lv
denied 19 NY3d 968 [2012]). In any event, the record reflects
that defendant was fully advised of the trial-related rights that
he was forgoing and the consequences of the plea, that he had
consulted with his attorney and understood and accepted the plea
terms, and that the plea represented a voluntary choice among
available alternatives (see People v Gravino, 14 NY3d 546, 553-
554 [2010]; People v Fiumefreddo, 82 NY2d 536, 543 [1993]).
We find defendant's appeal waiver to be valid. The record
reveals that County Court adequately explained the consequences
of the waiver of the right to appeal and distinguished that right
from the other rights he was giving up as a consequence of his
plea (see People v Campbell, 114 AD3d 996, 997 [2014]).
Defendant also executed a detailed written waiver of the right to
appeal and confirmed on the record that he understood the waiver
and was freely and voluntarily signing it (see People v Devault,
124 AD3d 1140, 1140 [2015], lv denied 25 NY3d 989 [2015]; People
1
County Court imposed a concurrent prison sentence of
seven years with three years of postrelease supervision on the
probation violation.
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106591
v Clemons, 96 AD3d 1086, 1087 [2012], lv denied 19 NY3d 1101
[2012]). As defendant's waiver of the right to appeal is valid,
his contention that the sentence imposed was harsh and excessive
is precluded (see People v Balbuena, 123 AD3d 1384, 1386 [2014];
People v Jackson, 119 AD3d 1288, 1288 [2014], lv denied 25 NY3d
1165 [2015]).
Peters, P.J., Lahtinen and Clark, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court