Opinion
2012-12-6
The PEOPLE of the State of New York, Respondent, v. John COLON, Appellant.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
Before: ROSE, J.P., LAHTINEN, SPAIN, KAVANAGH and McCARTHY, JJ.
ROSE, J.P.
Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered June 10, 2010, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
Defendant was charged with criminal sale of a controlled substance in the third degree after selling crack cocaine to a confidential informant. When crack cocaine was found in his underwear as the result of a strip search conducted after his arrest, he was also charged with two counts of criminal possession of a controlled substance. In addition, defendant was charged with criminal sale of a controlled substance in the third degree in a separate indictment in connection with another sale of crack cocaine on a different date. After a Mapp hearing, County Court denied defendant's motion to suppress the crack cocaine found on his person, finding that the search was incident to a lawful arrest and reasonable under the circumstances. Just before jury selection, defendant pleaded guilty to one count of criminal sale of a controlled substance in the third degree in full satisfaction of all charges pending against him. As a conditionto the court's acceptance of the plea, defendant waived his right to appeal both orally and in writing after conferring with the court and counsel. Defendant was later sentenced to 7 1/2 years in prison with two years of postrelease supervision.
Defendant now appeals, challenging the denial of his suppression motion and claiming that his sentence is harsh and excessive. He does not, however, claim that he did not knowingly, voluntarily and intelligently waive his right to appeal. Instead, he argues that he did not agree that his appeal waiver would include a waiver of his right to challenge the denial of his suppression motion. The record reveals, however, that defendant's appeal waiver was not limited in any way and covered “all legal and constitutional grounds,” including “everything that occurred in this prosecution.” Accordingly, the valid appeal waiver forecloses his challenge to the denial of his suppression motion ( 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],lv. denied19 N.Y.3d 973, 950 N.Y.S.2d 356, 973 N.E.2d 766 [2012];People v. Schmidt, 57 A.D.3d 1104, 1104, 869 N.Y.S.2d 648 [2008] ), as well as to the duration of his sentence ( see People v. Irvis, 90 A.D.3d 1302, 1303, 935 N.Y.S.2d 371 [2011],lv. denied19 N.Y.3d 962, 950 N.Y.S.2d 114, 973 N.E.2d 212 [2012];People v. Jones, 88 A.D.3d 1029, 1029, 930 N.Y.S.2d 496 [2011],lv. denied18 N.Y.3d 859, 938 N.Y.S.2d 867, 962 N.E.2d 292 [2011] ).
ORDERED that the judgment is affirmed.