pCANTON — A state appellate court Thursday upheld the conviction and 21-year state prison sentence of a former Gouverneur man who killed his ex-fiancee’s infant in 2013./ppGary L. McKenzie II, 24, is serving his sentence at Attica Correctional Facility after pleading guilty in St. Lawrence County Court in May 2014 to first-degree manslaughter. McKenzie admitted that he caused the death of 7-month-old Braylin W. Chambers on July 16, 2013. /ppMcKenzie, who was a soldier stationed at Fort Drum at the time, was babysitting Braylin at his Hailesboro Street home, which he shared with the baby’s mother, Savanna Goble, and became frustrated with the child, he told County Judge Jerome J. Richards at the time of the plea. He said he threw the child, who was in a bouncy seat, causing the child to strike his head on a wall, which caused an inoperable brain injury and hemorrhaging that resulted in the baby’s death later that day./ppMcKenzie appealed the conviction and sentence to the state Appellate Division, Third Department, contending that he never knowingly waived his right to appeal. In its ruling Thursday, the appellate court disagreed, stating that Judge Richards ascertained McKenzie’s understanding that the plea agreement included waiving his right to appeal. The court further found that McKenzie executed a written waiver of appeal in open court, which included an acknowledgement that he had sufficient time to discuss the waiver with his attorney. The court ruled that he knowingly and voluntarily waived his right to appeal./ppIn other decisions Thursday, the appellate court affirmed two other convictions and sentences:/ppMickey Q. Kerrick, 27, Winthrop, is serving a seven-year prison sentence at Livingston Correctional Facility after pleading guilty in December 2010 to second-degree burglary and third-degree criminal possession of a weapon. He had been accused, with others, of breaking into a North Lawrence residence in November 2009 and with possessing guns stolen from a West Potsdam home the same month./ppAccording to the appellate ruling, his sentencing was set for March 2011 to allow prosecutors time to bring his co-defendants’ cases to trial. He was not sentenced until October 2012, which he contended was an unreasonable delay resulting in County Court no longer having jurisdiction over him./ppThe appellate court ruled that, although Mr. Kerrick had sent letters to the lower court about the delay, he did not move to dismiss the indictment or superior court information against him that would have called into question County Court’s jurisdiction to sentence him and therefore failed to preserve this claim for the appellate court’s review. The court said the delay was attributable to ongoing legal proceedings in which Mr. Kerrick was required to testify against his two co-defendants pursuant to terms in his plea agreement. /ppPaul S. Smith Jr., 35, is serving a 2 1/3- to 7-year sentence at Greene Correctional Facility, for an October 2011 guilty plea to felony driving while ability impaired by drugs. It had been alleged that he drove under the influence of marijuana and several prescription drugs in January 2011 on Route 68 in the town of Oswegatchie./ppMr. Smith was referred to the Judicial Diversion Program, which could have resulted in a reduction of his sentence had he completed it. He admitted in November 2012 that he failed to complete the program by absconding from its supervision and by using an illegal drug and was sentenced to prison. He appealed, contending that County Court failed to explain the consequences of violating his JDP contract or to state exactly how long he was expected to participate in the program./ppThe appellate court ruled that he made no effort to call into question that his guilty plea was entered voluntarily in County Court and said nothing when entering his plea that would enable the higher court to review the matter. The court stated that he did not challenge the voluntary nature of his plea until filing his appeal, thus failing to preserve that claim for the appellate court’s review. The court also rejected his claim that his sentence was excessive./p
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