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People v. Whitehead

State of New York Supreme Court, Appellate Division Third Judicial Department


May 20, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
TAURUS WHITEHEAD, APPELLANT.

MEMORANDUM AND ORDER

Calendar Date: April 7, 2010

Before: Mercure, J.P., Peters, Kavanagh, Stein and McCarthy, JJ.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered September 11, 2008, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

In satisfaction of a six-count indictment, defendant pleaded guilty to burglary in the second degree and waived his right to appeal. Consistent with the terms of the plea agreement, he was sentenced to 10 years in prison, to be followed by three years of postrelease supervision. Defendant now appeals.

We affirm. Upon reviewing the record, we find that defendant executed a knowing, voluntary and intelligent waiver of his right to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Minter, 71 AD3d 1335, 1335-1336 [2010]). Given his valid waiver, defendant is precluded from challenging the severity of his sentence (see People v Lopez, 6 NY3d at 256; People v Romano, 45 AD3d 910, 916 [2007], lv denied 10 NY3d 770 [2008]), as well as the admissibility of his statements, particularly in view of the fact that he pleaded guilty before a suppression hearing was conducted (see People v Costa, 4 AD3d 675, 676 [2004], lv denied 2 NY3d 797 [2004]; People v Hamilton, 232 AD2d 899, 900 [1996], lv denied 89 NY2d 942 [1997]). Such waiver also forecloses his claim that his counsel was ineffective inasmuch as it does not impact the voluntariness of his plea (see People v Perry, 50 AD3d 1244, 1245 [2008], lv denied 10 NY3d 963 [2008]; People v Morelli, 46 AD3d 1215, 1217 [2007], lv denied 10 NY3d 814 [2008]). In view of the foregoing, we find no reason to disturb the judgment of conviction.

Mercure, J.P., Peters, Kavanagh, Stein and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.

20100520

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