Opinion
2011-10-6
The PEOPLE of the State of New York, Respondent,v.Timothy BALLARD, Appellant.
Arthur G. Dunn, Troy, for appellant.Kevin C. Kortright, District Attorney, Fort Edward (Shea P. Kolar of counsel), for respondent.Before: PETERS, J.P., SPAIN, LAHTINEN, STEIN and EGAN JR., JJ.
PETERS, J.P.
Appeals (1) from a judgment of the County Court of Washington County (McKeighan, J.), rendered February 25, 2010, convicting defendant upon his plea of guilty of the crimes of failure to register under the Sex Offender Registration Act and possessing a sexual performance by a child, and (2) from a judgment of said court, rendered February 25, 2010, which revoked defendant's probation and imposed a sentence of imprisonment.
While on probation following his conviction of rape in the third degree, defendant was charged in an indictment with failure to register under the Sex Offender Registration Act and three counts of possessing a sexual performance by a child. Defendant pleaded guilty to failure to register under the Sex Offender Registration Act and one count of possessing a sexual performance by a child in full satisfaction of the indictment and waived his right to appeal. County Court thereafter sentenced defendant, as a second felony offender, to an aggregate prison term of 2 to 4 years. County Court also revoked defendant's probation on the rape conviction and imposed a term of imprisonment of 1 to 3 years, with that sentence to run consecutively to the aggregate sentence stemming from his convictions for failing to register under the Sex Offender Registration Act and possessing a sexual performance by a child. Defendant now appeals.
We affirm. Defendant's sole contention on appeal is that County Court erred in denying his motion to suppress certain statements he made to his probation officers concerning his use of the Internet to access child pornography. Defendant does not challenge the validity of his waiver of the right to appeal. Our review of the record reveals that during the plea allocution, County Court distinguished the right to appeal from the rights defendant was
forfeiting by his guilty plea and defendant acknowledged his understanding of the waiver. Thereafter, defendant signed a counseled written appeal waiver in open court. Accordingly, we find that defendant validly waived his right to appeal ( see People v. Wicks, 83 A.D.3d 1223, 1224, 920 N.Y.S.2d 488 [2011], lv. denied 17 N.Y.3d 810, 929 N.Y.S.2d 570, 953 N.E.2d 808 [2011]; People v. Chaney, 70 A.D.3d 1251, 1252, 897 N.Y.S.2d 275 [2010], lv. denied 15 N.Y.3d 748, 906 N.Y.S.2d 821, 933 N.E.2d 220 [2010] ). In light of his valid appeal waiver, defendant is precluded from challenging the denial of his suppression motion ( see People v. White, 75 A.D.3d 837, 838, 905 N.Y.S.2d 681 [2010], lv. denied 15 N.Y.3d 925, 913 N.Y.S.2d 652, 939 N.E.2d 818 [2010]; People v. Robertson, 46 A.D.3d 928, 929, 846 N.Y.S.2d 755 [2007], lv. denied 10 N.Y.3d 844, 859 N.Y.S.2d 402, 889 N.E.2d 89 [2008] ).
ORDERED that the judgments are affirmed.
SPAIN, LAHTINEN, STEIN and EGAN JR., JJ., concur.