Opinion
03-21-2024
The PEOPLE of the State of New York, Respondent, v. Aaron GARCIA, Defendant–Appellant.
Twyla Carter, The Legal Aid Society, New York (Paul Wiener of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.
Twyla Carter, The Legal Aid Society, New York (Paul Wiener of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.
Oing, J.P., Kapnick, Shulman, Rodriguez, O’Neill Levy, JJ.
Judgment, Supreme Court, New York County (Mark Dwyer, J.), rendered September 9, 2020, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony drug offender with a prior violent felony conviction, to a term of five years, unanimously affirmed.
By pleading guilty, defendant forfeited his right to appellate review of the court’s denial of his CPL 210.40 motion to dismiss the indictment in furtherance of justice (People v. Curley, 212 A.D.3d 444, 445, 179 N.Y.S.3d 574 [1st Dept. 2023], lv denied 39 N.Y.3d 1154, 190 N.Y.S.3d 676, 211 N.E.3d 1129 [2023]). Review of his claim is also foreclosed by the valid waiver of his right to appeal (People v. Cortes, 44 A.D.3d 538, 843 N.Y.S.2d 507 [1st Dept. 2007], lv denied 9 N.Y.3d 1032, 852 N.Y.S.2d 17, 881 N.E.2d 1204 [2008]; see also People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. —, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]). In any event, we find that the court providently exercised its discretion in denying this "extraordinary remedy, which we have cautioned should be exercised sparingly" (People v. Hernandez, 198 A.D.3d 545, 152 N.Y.S.3d 822 [1st Dept. 2021] [internal quotation marks and citation omitted], lv denied 37 N.Y.3d 1161, 160 N.Y.S.3d 698, 181 N.E.3d 1126 [2022]).