Opinion
2011-03-22
The PEOPLE, etc., respondent, v. Ronald TIMBERLAKE, appellant.
Michael A. Fiechter, Bellmore, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Donald Berk of counsel), for respondent.
Michael A. Fiechter, Bellmore, N.Y., for appellant. Kathleen M. Rice, District Attorney, Mineola, N.Y. (Robert A. Schwartz and Donald Berk of counsel), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, Nassau County (Gulotta, Jr., J.), both rendered November 16, 2009, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree under S.C.I. No. 1101/08, and criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree under Indictment No. 95/08, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgments are affirmed.
The defendant contends that the terms of his plea agreement violate public policy, and that his pleas were not knowingly, voluntarily, and intelligently made. The defendant's contentions, while not foreclosed by his valid waiver of his right to appeal ( see People v. Muniz, 91 N.Y.2d 570, 575, 673 N.Y.S.2d 358, 696 N.E.2d 182;People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022), are, however, unpreserved for appellate review ( see People v. Adams, 67 A.D.3d 819, 887 N.Y.S.2d 859). Although the defendant moved to vacate the judgments of conviction, his motion was not predicated on the grounds now raised on appeal ( see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Martin, 7 A.D.3d 640, 776 N.Y.S.2d 499;cf. People v. Goins, 278 A.D.2d 244, 716 N.Y.S.2d 909). In any event, the defendant's contentions are without merit ( see People v. Avery, 85 N.Y.2d 503, 507, 626 N.Y.S.2d 726, 650 N.E.2d 384;People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;People v. Lewis, 73 A.D.3d 1212, 900 N.Y.S.2d 912;People v. Armstead, 48 A.D.3d 694, 695, 852 N.Y.S.2d 313).
To the extent the defendant contends that the Supreme Court failed to make a sufficient inquiry into whether he violated the terms of the plea agreement or that it improperly concluded that he violated the plea agreement, his contentions are unpreserved for appellate review and, in any event, without merit ( see People v. Valencia, 3 N.Y.3d 714, 715–716, 786 N.Y.S.2d 374, 819 N.E.2d 990;People v. Billups, 63 A.D.3d 750, 881 N.Y.S.2d 445;People v. Andrews, 62 A.D.3d 1237, 1239, 877 N.Y.S.2d 812;People v. Garner, 18 A.D.3d 669, 670, 795 N.Y.S.2d 336).
The defendant's valid waiver of his right to appeal forecloses appellate review of his claim that the sentences imposed were excessive ( see People v. Seaberg, 74 N.Y.2d at 11, 543 N.Y.S.2d 968, 541 N.E.2d 1022;People v. Lewis, 73 A.D.3d at 1212, 900 N.Y.S.2d 912).
The defendant's remaining contention, that the Supreme Court should have granted his motions to vacate the judgments of conviction pursuant to CPL 440.10, is not properly before this Court ( seeCPL 450.15[1]; People v. Nicholas, 8 A.D.3d 300, 777 N.Y.S.2d 321; People v. Alexis, 295 A.D.2d 529, 744 N.Y.S.2d 686;People v. McCoy, 270 A.D.2d 432, 705 N.Y.S.2d 269).