Opinion
2012-11-7
The PEOPLE, etc., respondent, v. Bushawn SHELTON, appellant.
Steven Banks, New York, N.Y. (Frances A. Gallagher of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Jennifer Hagan of counsel), for respondent.
Steven Banks, New York, N.Y. (Frances A. Gallagher of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Jennifer Hagan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered March 15, 2010, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that his prosecution in the instant case was barred on the grounds of collateral estoppel and double jeopardy. The defendant's waiver of his right to appeal implicitly waived his constitutional claim to be free from double jeopardy ( see People v. Muniz, 91 N.Y.2d 570, 575, 673 N.Y.S.2d 358, 696 N.E.2d 182;People v. Thorpe, 2 A.D.3d 467, 767 N.Y.S.2d 848). The record shows that the defendant's waiver of his right to appeal was knowingly, voluntarily, and intelligently made ( see People v. Muniz, 91 N.Y.2d at 575, 673 N.Y.S.2d 358, 696 N.E.2d 182).
The defendant, by waiving his right to appeal, also waived his claim that his prosecution in the instant case was barred by CPL 40.40 ( cf. People v. Marshall, 24 A.D.3d 470, 804 N.Y.S.2d 694;People v. Snype, 19 A.D.3d 621, 796 N.Y.S.2d 546). In any event, by pleading guilty, the defendant forfeited this claim ( see People v. Dodson, 48 N.Y.2d 36, 421 N.Y.S.2d 47, 396 N.E.2d 194;People v. Prescott, 104 A.D.2d 610, 479 N.Y.S.2d 383,affd.66 N.Y.2d 216, 495 N.Y.S.2d 955, 486 N.E.2d 813,cert. denied475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349;People v. Cramer, 85 A.D.2d 832, 446 N.Y.S.2d 442).