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The People of the State of v. Virgil Gaither

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


June 16, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
VIRGIL GAITHER, APPELLANT.

Appeal from a judgment of the County Court of Schenectady County (Giardino, J.), rendered April 23, 2010, convicting defendant upon his plea of guilty of the crimes of burglary in the second degree (two counts), petit larceny, menacing in the second degree and criminal mischief in the fourth degree.

The opinion of the court was delivered by: Egan Jr., J.

MEMORANDUM AND ORDER

Calendar Date: April 29, 2011

Before: Peters, J.P., Spain, Rose, Stein and Egan Jr., JJ.

Defendant pleaded guilty to burglary in the second degree (two counts), petit larceny, menacing in the second degree and criminal mischief in the fourth degree, waived his right to appeal and thereafter was sentenced as a second felony offender to an aggregate prison term of nine years followed by five years of postrelease supervision. Defendant now appeals, contending only that County Court erred in denying his motion to suppress the victim's showup identification of him as unduly suggestive.

We affirm. Defendant does not challenge the validity of his waiver of the right to appeal, and our review of the plea colloquy confirms that County Court's admonitions, together with defendant's execution of the written waiver contained in the record and his expressed understanding thereof, were sufficient to apprise defendant of the right he was forfeiting (see People v White, 75 AD3d 837, 838 [2010], lv denied 15 NY3d 925 [2010]; People v Cruz, 74 AD3d 1496, 1497 [2010], lv denied 15 NY3d 803 [2010]; People v Schmidt, 57 AD3d 1104 [2008]). In light of defendant's valid waiver, he is precluded from challenging the denial of his suppression motion (see id.; see also People v Pump, 67 AD3d 1041, 1041 [2009], lv denied 13 NY3d 941 [2010]).

Peters, J.P., Spain, Rose and Stein, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20110616

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