Opinion
107354
03-22-2018
The PEOPLE of the State of New York, Respondent, v. Deshawn BOOKER, Appellant.
Jane M. Bloom, Monticello, for appellant. James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.
Jane M. Bloom, Monticello, for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Aarons, J.Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered December 3, 2014, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree.
In satisfaction of a nine-count indictment, defendant pleaded guilty to criminal possession of a weapon in the second degree and waived the right to appeal. After initially sentencing defendant, County Court vacated the sentence in order to provide defendant an opportunity to move to withdraw his plea. Following a hearing, County Court denied the motion and sentenced defendant, as a second felony offender, to 13 years in prison, to be followed by five years of postrelease supervision. Defendant now appeals.
We affirm. Defendant's unchallenged waiver of the right to appeal precludes his contention that the agreed-upon sentence was harsh and excessive (see People v. Fairweather, 147 A.D.3d 1153, 1154, 46 N.Y.S.3d 439 [2017], lv denied 29 N.Y.3d 1031, 62 N.Y.S.3d 300, 84 N.E.3d 972 [2017] ; People v. Guzman–Moore, 144 A.D.3d 1267, 1268, 40 N.Y.S.3d 289 [2016], lv denied 29 N.Y.3d 949, 54 N.Y.S.3d 379, 76 N.E.3d 1082 [2017] ). Defendant's claim that he was denied the effective assistance of counsel—because counsel failed to challenge the validity of a search warrant—does not implicate the voluntariness of his plea and is therefore foreclosed by his appeal waiver (see People v. Bouck, 153 A.D.3d 1522, 1523–1524, 61 N.Y.S.3d 388 [2017], lv denied 30 N.Y.3d 1017, 70 N.Y.S.3d 450, 93 N.E.3d 1214 [2017] ; People v. Leigh, 71 A.D.3d 1288, 1288, 897 N.Y.S.2d 744 [2010], lv denied 15 N.Y.3d 775, 907 N.Y.S.2d 464, 933 N.E.2d 1057 [2010] ). To the extent that defendant claims that his plea was involuntary due to the ineffective assistance of counsel, this claim is unpreserved for our review, inasmuch as he did not move to withdraw his plea on this ground (see People v. Chaires, 150 A.D.3d 1326, 1327, 53 N.Y.S.3d 722 [2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ; People v. Toledo, 144 A.D.3d 1332, 1333, 40 N.Y.S.3d 680 [2016], lv denied 29 N.Y.3d 1001, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017] ).
We reject defendant's contention that he was unable to appeal the denial of his motion to withdraw his plea because County Court did not issue a written decision thereon. Initially, there is no requirement that a court render a written decision when denying a motion to withdraw a guilty plea (see CPL 220.60 ; see generally People v. Elmer, 19 N.Y.3d 501, 507–508, 950 N.Y.S.2d 77, 973 N.E.2d 172 [2012] ; compare People v. Barnett, 99 A.D.3d 1030, 1031, 951 N.Y.S.2d 919 [2012] ). As to an appeal of the denial of a motion to withdraw a guilty plea, "[a]ppeals in criminal cases are strictly limited to those authorized by statute" ( People v. Bautista, 7 N.Y.3d 838, 838–839, 823 N.Y.S.2d 754, 857 N.E.2d 49 [2006] ; accord People v. Rubeo, 60 A.D.3d 1206, 1207, 874 N.Y.S.2d 643 [2009] ). "Inasmuch as an order denying a motion to withdraw a guilty plea does not fall within the provisions of CPL article 450," a separate appeal from such an order does not lie ( People v. Rubeo, 60 A.D.3d at 1207, 874 N.Y.S.2d 643 ; see People v. Riley, 25 A.D.2d 915, 916, 270 N.Y.S.2d 11 [1966] ). Rather, defendant could have challenged the denial of his motion upon appeal of the judgment of conviction (see CPL 470.15 [1] ; People v. Rubeo, 60 A.D.3d at 1207, 874 N.Y.S.2d 643 ). Defendant's remaining claims have been considered and found to be without merit.
ORDERED that the judgment is affirmed.
Egan Jr., J.P., Lynch, Mulvey and Pritzker, JJ., concur.