Opinion
2021-06773 Ind 2301/17
12-02-2021
The People of the State of New York, Respondent, v. Denny Guerrero, Defendant-Appellant. Appeal No. 14727 Case No. 2019-5174
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Rutkin-Becker of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Franklin R. Guenthner of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Benjamin Rutkin-Becker of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Franklin R. Guenthner of counsel), for respondent.
Before: Webber, J.P., Friedman, Oing, Shulman, Pitt, JJ.
Judgment, Supreme Court, New York County (Neil E. Ross, J.), rendered April 2, 2019, as amended April 9, 2019, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree and conspiracy in the second degree, and sentencing him to an aggregate term of eight years, unanimously affirmed.
Defendant made a valid waiver of his right to appeal. The court's oral colloquy, which sufficiently distinguished the right to appeal from the trial rights automatically forfeited by a guilty plea, taken together with a detailed written waiver that fully explained the appellate rights defendant was giving up, established that the waiver was knowing, intelligent, and voluntary (see People v Thomas, 34 N.Y.3d 545, 560 [2019], cert denied 589 U.S. ___, 140 S.Ct. 2634 [2020]; People v Bryant, 28 N.Y.3d 1094, 1096 [2016]). Defendant acknowledged that he read and understood the written waiver, and to the extent there was any ambiguity in the oral colloquy concerning the scope of the right being waived, it was resolved by the written waiver (see People v Wolfe, 189 A.D.3d 633 [1st Dept 2020], lv denied 36 N.Y.3d 1101 [2021]). The Court of Appeals has recently reiterated that "the voluntary waiver of the CPL 710.70 right to appellate review of a suppression ruling can be a condition of the plea bargain" (Thomas, 34 N.Y.3d at 565), and defendant's policy argument regarding waiver of suppression issues is unavailing. Defendant's waiver forecloses review of his suppression and excessive sentence claims.
Regardless of whether defendant made a valid waiver of his right to appeal, we find that the record supports the hearing court's suppression ruling. We also perceive no basis for reducing the sentence.