Opinion
02-25-2016
The PEOPLE of the State of New York, Respondent, v. John L. ZIPPO, Appellant.
Paul J. Connolly, Delmar, for appellant, and appellant pro se. Karen Heggen, District Attorney, Ballston Spa (Kristin Foust of counsel), for respondent.
Paul J. Connolly, Delmar, for appellant, and appellant pro se.
Karen Heggen, District Attorney, Ballston Spa (Kristin Foust of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, ROSE and DEVINE, JJ.
ROSE, J.Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered April 24, 2014, convicting defendant upon his plea of guilty of the crime of attempted robbery in the first degree.
Defendant was charged by indictment with one count each of robbery in the first degree, criminal possession of a weapon in the fourth degree and criminal possession of stolen property in the fifth degree, all of which arose out of a robbery of two victims at knifepoint. Defendant's motion to suppress the evidence was denied, and he then pleaded guilty to a reduced count of attempted robbery in the first degree in satisfaction of the indictment. As a condition of the plea bargain, he agreed to waive his right to appeal, both orally and in writing. Before accepting defendant's waiver, County Court explained that his right to appeal was separate and distinct from those rights given up when a plea of guilty is entered. In addition, defendant acknowledged that his counsel had explained the meaning of the appeal waiver to him. Defendant was subsequently sentenced as a second felony offender in accordance with the plea agreement.
Defendant's sole challenge on appeal concerns County Court's decision denying his motion to suppress the evidence that led to his arrest. However, his knowing, voluntary and intelligent waiver of his right to appeal precludes his challenge to the adverse suppression ruling (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ; People v. Stone, 105 A.D.3d 1094, 1095, 962 N.Y.S.2d 789 [2013] ; People v. Colon, 101 A.D.3d 1161, 1161–1162, 955 N.Y.S.2d 434 [2012], lv. denied 21 N.Y.3d 1003, 971 N.Y.S.2d 254, 993 N.E.2d 1276 [2013] ). While the better practice is for County Court to advise defendant at the time of the plea that his waiver included the right to appeal the suppression issue (see People v. Kemp, 94 N.Y.2d at 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 ), defendant signed a written waiver whereby he agreed to waive his right to appeal on several grounds, including "[t]he decision and order of [County] Court on any pre-trial motions made by the defendant." Thus, defendant's appeal waiver was not qualified or limited in any way. Further, defendant's counsel made it abundantly clear at the time of sentencing that defendant understood that his appeal waiver applied to County Court's suppression ruling.
ORDERED that the judgment is affirmed.
McCARTHY, J.P., GARRY and DEVINE, JJ., concur.