Opinion
03-09-2017
The PEOPLE of the State of New York, Respondent, v. William BONDS, also known as Ice, Appellant.
Brian M. Quinn, Albany, for appellant, and appellant pro se. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Brian M. Quinn, Albany, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: PETERS, P.J., ROSE, DEVINE and AARONS, JJ.
DEVINE, J.Appeal from a judgment of the County Court of Schenectady County (Loyola, J.), rendered July 9, 2015, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.Defendant was charged in a four-count indictment with offenses stemming from his alleged sale of cocaine to a police informant on two occasions six days apart. He engaged in pretrial motion practice that included, among other things, applications to suppress the informant's identification of him to police and place him in the Judicial Diversion Program. After that relief was denied, defendant pleaded guilty to criminal sale of a controlled substance in the third degree in satisfaction of the indictment and waived his right to appeal. As contemplated by the plea agreement, County Court sentenced defendant, a second felony offender, to five years in prison and two years of postrelease supervision. Defendant now appeals.
We affirm. Upon our review of the thorough plea colloquy and the detailed written waiver executed by defendant, we are satisfied that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v. Walton, 101 A.D.3d 1489, 1489–1490, 956 N.Y.S.2d 705 [2012], lv. denied 20 N.Y.3d 1105, 965 N.Y.S.2d 801, 988 N.E.2d 539 [2013] ; People v. McDuffie, 89 A.D.3d 1154, 1156, 932 N.Y.S.2d 228 [2011], lv. denied 19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 [2012] ). Defendant is accordingly precluded from arguing that County Court erred in refusing to either suppress identification evidence (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ; People v. Flake, 95 A.D.3d 1371, 1372, 943 N.Y.S.2d 307 [2012], lvs. denied 19 N.Y.3d 973, 974, 950 N.Y.S.2d 356, 357, 973 N.E.2d 766, 767 [2012] ) or grant him judicial diversion (see People v. Brown, 122 A.D.3d 1006, 1007, 995 N.Y.S.2d 841 [2014] ; People v. Smith, 112 A.D.3d 1232, 1232, 976 N.Y.S.2d 747 [2013], lv. denied 22 N.Y.3d 1203, 986 N.Y.S.2d 423, 9 N.E.3d 918 [2014] ).
Defendant also challenges the voluntariness of his guilty plea and, while that issue survives his appeal waiver, the apparent lack of an appropriate postallocution motion leaves it unpreserved for our review (see People v. Mann, 140 A.D.3d 1532, 1533, 33 N.Y.S.3d 779 [2016] ; People v. White, 139 A.D.3d 1260, 1260, 31 N.Y.S.3d 669 [2016] ). Despite defendant's protestations to the contrary, nothing was said during the plea colloquy that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea so as to implicate the narrow exception to the preservation rule (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Austin, 141 A.D.3d 956, 957, 35 N.Y.S.3d 580 [2016] ).
Defendant next contends that the indictment was jurisdictionally defective which, unlike his speculation that deficiencies might be found in the grand jury minutes, survives his guilty plea and appeal waiver (see People v. Hansen, 95 N.Y.2d 227, 230–231, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Rapp, 133 A.D.3d 979, 979–980, 20 N.Y.S.3d 663 [2015] ). The indictment was jurisdictionally valid, however, as the count to which defendant pleaded guilty recited the specific section of the Penal Law under which he was charged and did not need to specify the exact subset of cocaine he sold (see People v. Rapp, 133 A.D.3d at 980, 20 N.Y.S.3d 663 ; People v. Moon, 119 A.D.3d 1293, 1294, 990 N.Y.S.2d 98 [2014], lv. denied 24 N.Y.3d 1004, 997 N.Y.S.2d 122, 21 N.E.3d 574 [2014] ).
The claims advanced by defendant in his pro se supplemental brief largely echo those raised by appellate counsel and addressed above. To the extent that they do not, we have examined them and found them to be without merit.ORDERED that the judgment is affirmed.
PETERS, P.J., ROSE and AARONS, JJ., concur.