Opinion
110968
04-21-2022
The PEOPLE of the State of New York, Respondent, v. Robert LENDE, Appellant.
Barrett D. Mack, Albany, for appellant. Susan J. Mallery, District Attorney, Howes Cave (Kevin P. Mallery of counsel), for respondent.
Barrett D. Mack, Albany, for appellant.
Susan J. Mallery, District Attorney, Howes Cave (Kevin P. Mallery of counsel), for respondent.
Before: Egan Jr., J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.
MEMORANDUM AND ORDER
McShan, J. Appeal from a judgment of the County Court of Schoharie County (Bartlett III, J.), rendered November 7, 2018, convicting defendant upon his plea of guilty of the crime of criminal possession of marihuana in the first degree.
During an aerial search by the Schoharie County Sheriff's office of property owned by defendant and his wife, plots of cultivated marihuana were observed and, based on this observation, law enforcement on the ground entered the property. Following entry, but prior to the seizure of any marihuana, a search warrant was acquired while law enforcement remained on the property. Based on the foregoing, defendant was charged with criminal possession of marihuana in the first degree. Following a suppression hearing as to the admissibility of the marihuana seized but prior to decision thereon, defendant pleaded guilty to the crime charged. In accordance with the plea agreement, defendant executed a written waiver of appeal and was sentenced to a five-year term of probation in conjunction with other fines and fees and the requirement that he successfully complete drug treatment. Defendant appeals.
Defendant's wife pleaded guilty to criminal possession of marihuana in the fourth degree and, upon appeal, this Court affirmed her judgment of conviction (People v. Lende, 190 A.D.3d 1110, 139 N.Y.S.3d 715 [2021], lv denied 36 N.Y.3d 1121, 146 N.Y.S.3d 210, 169 N.E.3d 568 [2021] ).
We affirm. Defendant's argument regarding suppression of the evidence seized during the search of his property is precluded by the unchallenged waiver of the right to appeal (see People v. Thomas, 34 N.Y.3d 545, 565, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Perez, 199 A.D.3d 1171, 1172, 154 N.Y.S.3d 495 [2021], lv denied 38 N.Y.3d 929, 164 N.Y.S.3d 3, 184 N.E.3d 824 [2022] ). Moreover, "by pleading guilty after the suppression hearing but before a decision was rendered, defendant forfeited his right to appellate review of all claims related to the motion" ( People v. Nugent, 173 A.D.3d 1483, 1484, 103 N.Y.S.3d 654 [2019] [internal quotation marks, brackets, ellipses and citation omitted]; see People v. Burks, 187 A.D.3d 1405, 1408, 133 N.Y.S.3d 333 [2020], lv denied 36 N.Y.3d 1095, 144 N.Y.S.3d 149, 167 N.E.3d 1284 [2021] ). Likewise, defendant's challenge to the severity of his sentence is precluded (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Rennie–Russell, 201 A.D.3d 1246, 1246–1247, 160 N.Y.S.3d 484 [2022] ; People v. Malu, 200 A.D.3d 1350, 1351, 158 N.Y.S.3d 414 [2021] ). To the extent that defendant's claim of ineffective assistance of counsel implicates the voluntariness of his plea, it survives the unchallenged appeal waiver but is unpreserved as the record does not reflect that defendant made an appropriate post-allocution motion (see People v. Agueda, 202 A.D.3d 1153, 1154, 160 N.Y.S.3d 489 [2022] ; People v. Hines, 200 A.D.3d 1217, 1218, 157 N.Y.S.3d 608 [2021], lvs denied 38 N.Y.3d 928, 931, 164 N.Y.S.3d 29, 184 N.E.3d 850 [2022]). Further, the narrow exception to the preservation rule is not implicated here (see People v. Williams, 193 A.D.3d 1113, 1114, 144 N.Y.S.3d 489 [2021] ).
Egan Jr., J.P., Aarons, Reynolds Fitzgerald and Fisher, JJ., concur.
ORDERED that the judgment is affirmed.