Opinion
10-05-2017
The PEOPLE of the State of New York, Respondent, v. Gary A. TADD Jr., Appellant.
Samantha Koolen, Albany, for appellant. J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of Counsel), for respondent.
Samantha Koolen, Albany, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of Counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE, AARONS and RUMSEY, JJ.
AARONS, J.While executing a search warrant at a residence located in Washington County, police officers recovered a quantity of heroin, cash and drug paraphernalia. Defendant was present at the residence during the search along with others. As a result, he was charged in an indictment with criminal possession of a controlled substance in the third degree and criminal use of drug paraphernalia in the second degree. In satisfaction of the indictment, defendant entered an Alford plea of guilty to the amended charge of criminal possession of a controlled substance in the fifth degree and waived his right to appeal. He was sentenced, in accordance with the terms of the plea agreement, to 1 ½ years in prison followed by one year of postrelease supervision. He now appeals.
Initially, the People concede, and we agree, that defendant's waiver of appeal was invalid for failure to comply with the requirements of People v. Lopez , 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 (2006) and, as such, he is not precluded from raising substantive challenges to the judgment of conviction (see People v. Roshia, 133 A.D.3d 1029, 1030, 19 N.Y.S.3d 373 [2015], affd. 28 N.Y.3d 989, 41 N.Y.S.3d 208, 63 N.E.3d 1152 [2016] ). Defendant contends that his counsel was ineffective due to his failure to request a suppression hearing with respect to items confiscated during the search. He further claims that his Alford plea was invalid because it was involuntary and County Court accepted it without any strong evidence of defendant's guilt. Significantly, however, the record does not reveal that defendant made an appropriate postallocution motion. Consequently, these claims have not been preserved for our review (see People v. Dubois, 150 A.D.3d 1562, 1563, 55 N.Y.S.3d 513 [2017] ; People v. Saylor, 132 A.D.3d 1018, 1018, 17 N.Y.S.3d 324 [2015] ; People v. Mears, 16 A.D.3d 917, 917–918, 791 N.Y.S.2d 725 [2005] ; People v. Ebert, 15 A.D.3d 781, 782, 789 N.Y.S.2d 772 [2005] ). Furthermore, inasmuch as defendant did not make any statements during the plea colloquy that cast doubt upon his guilt, the exception to the preservation rule is inapplicable (see People v. Dubois, 150 A.D.3d at 1563, 55 N.Y.S.3d 513 ; People v. Cooks, 150 A.D.3d 1323, 1324, 51 N.Y.S.3d 433 [2017] ). Accordingly, the judgment must be affirmed.
ORDERED that the judgment is affirmed.
PETERS, P.J., GARRY, ROSE and RUMSEY, JJ., concur.