Opinion
2012-05-3
The PEOPLE of the State of New York, Respondent, v. Justin FLAKE, Also Known as Ice, Appellant.
Kelly M. Monroe, Albany, for appellant. Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.
Kelly M. Monroe, Albany, for appellant. Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.
Before: PETERS, P.J., MALONE JR., KAVANAGH, STEIN and EGAN JR., JJ.
KAVANAGH, J.
Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered January 14, 2011, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
In July 2010, defendant was charged by indictment with two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree. The charges stemmed from allegations that defendant twice sold cocaine to a confidential informant. After conducting a Wade hearing, County Court concluded that the identification procedure employed by the police in securing the confidential informant's identification of defendant was not unduly suggestive and denied his motion to suppress. Thereafter, defendant entered a guilty plea to one count of criminal sale of a controlled substance in the third degree, waived his right to appeal, and was sentenced as a second felony offender—in accord with the plea agreement—to 4 1/2 years in prison, plus two years of postrelease supervision. Defendant now appeals, claiming that County Court improperly denied his motion to suppress, his plea allocution was factually insufficient, he was denied the effective assistance of counsel and the sentence imposed was harsh and excessive.
Defendant's challenge to County Court's denial of his motion to suppress is precluded by his waiver of his right to appeal ( see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999]; People v. Spruill, 90 A.D.3d 1242, 1243, 934 N.Y.S.2d 355 [2011]; People v. Ballard, 88 A.D.3d 1025, 1026, 930 N.Y.S.2d 494 [2011], lv. denied 18 N.Y.3d 955, 944 N.Y.S.2d 483, 967 N.E.2d 708 [2012] ). Defendant's challenge to the factual sufficiency of his guilty plea is also barred by the appeal waiver and, moreover, is unpreserved as there is no indication on this record that he moved to withdraw his plea or vacate the judgment of conviction ( see People v. Taylor, 89 A.D.3d 1143, 1143, 931 N.Y.S.2d 918 [2011]; People v. Planty, 85 A.D.3d 1317, 1317–1318, 925 N.Y.S.2d 240 [2011], lv. denied 17 N.Y.3d 820, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011]; People v. Richardson, 83 A.D.3d 1290, 1292, 920 N.Y.S.2d 752 [2011], lv. denied 17 N.Y.3d 821, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011] ).
Defendant does not challenge the validity of the waiver of his right to appeal and, upon our review, we find it was knowingly, voluntarily and intelligently entered ( see People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011]; People v. Ballard, 88 A.D.3d at 1026, 930 N.Y.S.2d 494).
As for defendant's claim regarding ineffective assistance of counsel, he argues that trial counsel should have moved to suppress audiotapes made by the confidential informant when the sales allegedly took place and maintains that the specter of those tapes being used as evidence against him impacted the voluntariness of his guilty plea. Assuming that counsel's failure to make such a motion could raise a question regarding the voluntariness of defendant's guilty plea ( see People v. Gentry, 73 A.D.3d 1383, 1384, 901 N.Y.S.2d 429 [2010] ), he has not preserved this issue because he did not move to withdraw his plea or vacate the judgment of conviction ( see People v. Irvis, 90 A.D.3d 1302, 1304, 90 A.D.3d 1302 [2011]; People v. Cassara, 88 A.D.3d 1069, 1069, 931 N.Y.S.2d 272 [2011] ). In any event, the record establishes that defendant obtained a favorable plea agreement, stated during his plea allocution that he was satisfied with counsel's efforts on his behalf and acknowledged having ample time to discuss with counsel the terms of the guilty plea before entering it. Therefore, were we to reach the issue we would find that defendant was afforded meaningful representation ( see People v. Gentry, 73 A.D.3d at 1384, 901 N.Y.S.2d 429).
Finally, defendant's valid appeal waiver precludes any claim that his sentence was harsh or excessive ( see People v. Jones, 88 A.D.3d 1029, 930 N.Y.S.2d 496 [2011], lv. denied 18 N.Y.3d 859, 938 N.Y.S.2d 867, 962 N.E.2d 292 [2011]; People v. Richardson, 83 A.D.3d at 1292, 920 N.Y.S.2d 752).
ORDERED that the judgment is affirmed.