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The People of the State of v. Timothy Ballard

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


October 6, 2011

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
TIMOTHY BALLARD, APPELLANT.

Appeals (1) from a judgment of the County Court of Washington County (McKeighan, J.), rendered February 25, 2010, convicting defendant upon his plea of guilty of the crimes of failure to register under the Sex Offender Registration Act and possessing a sexual performance by a child, and (2) from a judgment of said court, rendered February 25, 2010, which revoked defendant's probation and imposed a sentence of imprisonment.

The opinion of the court was delivered by: Peters, J.P.

MEMORANDUM AND ORDER

Calendar Date: September 8, 2011

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

While on probation following his conviction of rape in the third degree, defendant was charged in an indictment with failure to register under the Sex Offender Registration Act and three counts of possessing a sexual performance by a child. Defendant pleaded guilty to failure to register under the Sex Offender Registration Act and one count of possessing a sexual performance by a child in full satisfaction of the indictment and waived his right to appeal. County Court thereafter sentenced defendant, as a second felony offender, to an aggregate prison term of 2 to 4 years. County Court also revoked defendant's probation on the rape conviction and imposed a term of imprisonment of 1 to 3 years, with that sentence to run consecutively to the aggregate sentence stemming from his convictions for failing to register under the Sex Offender Registration Act and possessing a sexual performance by a child. Defendant now appeals.

We affirm. Defendant's sole contention on appeal is that County Court erred in denying his motion to suppress certain statements he made to his probation officers concerning his use of the Internet to access child pornography. Defendant does not challenge the validity of his waiver of the right to appeal. Our review of the record reveals that during the plea allocution, County Court distinguished the right to appeal from the rights defendant was forfeiting by his guilty plea and defendant acknowledged his understanding of the waiver. Thereafter, defendant signed a counseled written appeal waiver in open court. Accordingly, we find that defendant validly waived his right to appeal (see People v Wicks, 83 AD3d 1223, 1224 [2011], lv denied 17 NY3d 810 [2011]; People v Chaney, 70 AD3d 1251, 1252 [2010], lv denied 15 NY3d 748 [2010]). In light of his valid appeal waiver, defendant is precluded from challenging the denial of his suppression motion (see People v White, 75 AD3d 837, 838 [2010], lv denied 15 NY3d 925 [2010]; People v Robertson, 46 AD3d 928, 929 [2007], lv denied 10 NY3d 844 [2008]).

Spain, Lahtinen, Stein and Egan Jr., JJ., concur.

ORDERED that the judgments are affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20111006

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