Opinion
2012-12-27
The PEOPLE of the State of New York, Respondent, v. Robert D. WALTON Jr., Appellant.
Barrett D. Mack, Valatie, for appellant. James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.
Barrett D. Mack, Valatie, for appellant. James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), for respondent.
Before: PETERS, P.J., SPAIN, KAVANAGH, McCARTHY and EGAN JR., JJ.
PETERS, P.J.
Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered September 2, 2011, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and waived his right to appeal. He was sentenced, in accordance with the plea agreement, as a second felony offender to six years in prison followed by 1 1/2 years of postrelease supervision. He now appeals.
Defendant's waiver of the right to appeal was valid. Although he expressed some uncertainty regarding the appeal waiver at the inception of the plea colloquy, County Court explained to defendant the nature of the right to appeal and made clear that this right was separate and distinct from the rights forfeited by the guilty plea. Defendant confirmed his understanding and declined further opportunity to discuss the waiver with counsel. Moreover, defendant executed a detailed written waiver. While such waiver was executed outside of court, he acknowledged his signature on the waiver and affirmed that he had discussed the waiver with counsel. Thus, we conclude that defendant knowingly, voluntarily and intelligently waived his right to appeal his conviction and sentence ( see People v. Tolliver, 92 A.D.3d 1024, 1024, 937 N.Y.S.2d 896 [2012];People v. McDuffie, 89 A.D.3d 1154, 1156, 932 N.Y.S.2d 228 [2011],lv. denied19 N.Y.3d 964, 950 N.Y.S.2d 116, 973 N.E.2d 214 [2012];People v. Jean–Francois, 82 A.D.3d 1366, 1366, 918 N.Y.S.2d 389 [2011],lv. denied17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100 [2011] ).
Defendant's valid appeal waiver precludes his challenge to County Court's denial of his request for a Wade hearing ( see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999];People v. Barrier, 7 A.D.3d 885, 886, 776 N.Y.S.2d 374 [2004],lvs. denied3 N.Y.3d 670, 784 N.Y.S.2d 9, 817 N.E.2d 827 [2004];People v. McGuffie, 294 A.D.2d 617, 618, 740 N.Y.S.2d 887 [2002],lv. denied98 N.Y.2d 699, 747 N.Y.S.2d 418, 776 N.E.2d 7 [2002] ). To the extent that defendant's ineffective assistance of counsel claim impacts the voluntariness of his plea and, therefore, survives his waiver of appeal, it is unpreserved for our review inasmuch as the record before us fails to indicate that he moved to withdraw his guilty plea or vacate the judgment of conviction ( see People v. Holmes, 75 A.D.3d 834, 835, 906 N.Y.S.2d 627 [2010],lv. denied15 N.Y.3d 921, 913 N.Y.S.2d 648, 939 N.E.2d 814 [2010];People v. Garland, 69 A.D.3d 1122, 1123, 891 N.Y.S.2d 921 [2010],lv. denied14 N.Y.3d 887, 903 N.Y.S.2d 776, 929 N.E.2d 1011 [2010] ). Were we to reach the issue, we would find that defendant was provided with meaningful representation ( see People v. Flake, 95 A.D.3d 1371, 1372, 943 N.Y.S.2d 307 [2012],lvs. denied19 N.Y.3d 973, 974, 950 N.Y.S.2d 356, 357, 973 N.E.2d 766, 767 [2012];People v. Shurock, 83 A.D.3d 1342, 1344, 920 N.Y.S.2d 862 [2011];People v. Lee, 51 A.D.3d 1217, 1218, 857 N.Y.S.2d 366 [2008] ).
Defendant's claim that he was improperly sentenced as a second felony offender is likewise unpreserved, as he failed to object at sentencing ( see People v. Washington, 89 A.D.3d 1140, 1142, 931 N.Y.S.2d 787 [2011],lv. denied18 N.Y.3d 963, 944 N.Y.S.2d 492, 967 N.E.2d 717 [2012];People v. Glynn, 72 A.D.3d 1351, 1351–1352, 899 N.Y.S.2d 442 [2010],lv. denied15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [2010] ). In any event, defendantpleaded guilty with the understanding that he would be sentenced as a second felony offender, admitted that he was the person previously convicted of the felony set forth in the predicate felony statement, and had ample opportunity to controvert any aspect of the prior conviction. Under the circumstances, we find substantial compliance with CPL 400.21(3) ( see People v. Smith, 89 A.D.3d 1328, 1328–1329, 932 N.Y.S.2d 913 [2011];People v. Washington, 89 A.D.3d at 1142, 931 N.Y.S.2d 787;People v. Califano, 84 A.D.3d 1504, 1506–1507, 923 N.Y.S.2d 299 [2011],lv. denied17 N.Y.3d 805, 929 N.Y.S.2d 564, 953 N.E.2d 802 [2011] ).
Finally, defendant's assertion that his sentence should be reduced in the interest of justice is barred by his valid appeal waiver ( see People v. White, 96 A.D.3d 1299, 1300, 946 N.Y.S.2d 717 [2012],lv. denied19 N.Y.3d 1029, 953 N.Y.S.2d 563, 978 N.E.2d 115 [2012];People v. Board, 75 A.D.3d 833, 834, 906 N.Y.S.2d 155 [2010] ).
ORDERED that the judgment is affirmed.