Opinion
2021–01778 Ind. No. 1176/18
08-02-2023
The PEOPLE, etc., respondent, v. Wiseallah HIGHTOWER–CASTRO, appellant.
Arza Feldman, Manhasset, NY (Steven A. Feldman of counsel), for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Jason R. Richards and Jared A. Chester of counsel; Matthew C. Frankel on the brief), for respondent.
Arza Feldman, Manhasset, NY (Steven A. Feldman of counsel), for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Jason R. Richards and Jared A. Chester of counsel; Matthew C. Frankel on the brief), for respondent.
COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Howard E. Sturim, J.), rendered February 3, 2021, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
In March 2020, the defendant entered a plea of guilty to criminal possession of a weapon in the third degree arising from his arrest during a random search of his residence by parole officers from the Department of Corrections and Community Supervision, wherein a gun was found inside of the defendant's bedroom. As part of the plea agreement, the defendant waived his right to appeal.
Contrary to the defendant's contention, the record demonstrates that he knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 559–560, 122 N.Y.S.3d 226, 144 N.E.3d 970 ; People v. Chung, 213 A.D.3d 107, 111, 184 N.Y.S.3d 141 ).
With respect to the defendant's challenge to the denial of his motion to suppress physical evidence and his statements to law enforcement officials, " ‘[t]he defendant's valid waiver of his right to appeal precludes appellate review of his challenge to the hearing court's suppression determination’ " ( People v. Barnes, 210 A.D.3d 792, 793, 178 N.Y.S.3d 164, quoting People v. Matos, 176 A.D.3d 976, 976, 108 N.Y.S.3d 354 ; see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ).
Although the defendant's contention regarding the voluntariness of his plea based upon the Supreme Court's failure to advise him of potential deportation consequences survives his waiver of the right to appeal (see People v. Peque, 22 N.Y.3d 168, 183, 980 N.Y.S.2d 280, 3 N.E.3d 617 ), under the circumstances of this case, where nothing in the record contradicts the defendant's statement made under oath at the plea proceeding that he is a citizen of the United States or the information contained within the Department of Probation Presentence Investigation Report indicating that the defendant is a United States citizen, we reject the defendant's contention (see People v. Brooks, 187 A.D.3d 931, 932, 130 N.Y.S.3d 365 ; People v. Rolling, 186 A.D.3d 1264, 1265, 127 N.Y.S.3d 874 ).
The defendant's challenge to the legality of his sentence also survives his valid waiver of the right to appeal (see People v. Chung, 213 A.D.3d at 111, 184 N.Y.S.3d 141 ; People v. Spencer, 149 A.D.3d 983, 983, 52 N.Y.S.3d 430 ), but it is without merit. The only remedy available to the defendant with respect to his contention, in effect, that the time during which he was incarcerated on his parole violation should have been credited against the sentence imposed on this conviction would be a credit of time served against the term of the underlying interrupted sentence, not the sentence which is the subject of this appeal (see Penal Law § 70.30[3] ; Matter of Jeffrey v. Ward, 44 N.Y.2d 812, 813–814, 406 N.Y.S.2d 291, 377 N.E.2d 744 ; Matter of Tubens v. New York City Dept. of Correction, 143 A.D.2d 589, 590, 533 N.Y.S.2d 71 ).
The defendant's remaining contention is precluded by his valid appeal waiver (see People v. Price, 150 A.D.3d 1153, 1154, 52 N.Y.S.3d 649 ; People v. Abdul, 112 A.D.3d 644, 645, 976 N.Y.S.2d 187 ; People v. Andre L., 18 A.D.3d 575, 576, 795 N.Y.S.2d 263 ).
DUFFY, J.P., CHAMBERS, CHRISTOPHER and WARHIT, JJ., concur.