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The People of the State of New York v. John Colon

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


December 6, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOHN COLON, APPELLANT.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered June 10, 2010, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

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

MEMORANDUM AND ORDER

Calendar Date: October 15, 2012

Before: Rose, J.P., Lahtinen, Spain, Kavanagh and McCarthy, JJ.

Defendant was charged with criminal sale of a controlled substance in the third degree after selling crack cocaine to a confidential informant. When crack cocaine was found in his underwear as the result of a strip search conducted after his arrest, he was also charged with two counts of criminal possession of a controlled substance. In addition, defendant was charged with criminal sale of a controlled substance in the third degree in a separate indictment in connection with another sale of crack cocaine on a different date. After a Mapp hearing, County Court denied defendant's motion to suppress the crack cocaine found on his person, finding that the search was incident to a lawful arrest and reasonable under the circumstances. Just before jury selection, defendant pleaded guilty to one count of criminal sale of a controlled substance in the third degree in full satisfaction of all charges pending against him. As a condition to the court's acceptance of the plea, defendant waived his right to appeal both orally and in writing after conferring with the court and counsel. Defendant was later sentenced to 71/2 years in prison with two years of postrelease supervision.

Defendant now appeals, challenging the denial of his suppression motion and claiming that his sentence is harsh and excessive. He does not, however, claim that he did not knowingly, voluntarily and intelligently waive his right to appeal. Instead, he argues that he did not agree that his appeal waiver would include a waiver of his right to challenge the denial of his suppression motion. The record reveals, however, that defendant's appeal waiver was not limited in any way and covered "all legal and constitutional grounds," including "everything that occurred in this prosecution." Accordingly, the valid appeal waiver forecloses his challenge to the denial of his suppression motion (see People v Kemp, 94 NY2d 831, 833 [1999]; People v Flake, 95 AD3d 1371, 1372 [2012], lv denied 19 NY3d 973 [2012]; People v Schmidt, 57 AD3d 1104, 1104 [2008]), as well as to the duration of his sentence (see People v Irvis, 90 AD3d 1302, 1303 [2011], lv denied 19 NY3d 962 [2012]; People v Jones, 88 AD3d 1029, 1029 [2011], lv denied 18 NY3d 859 [2011]).

Lahtinen, Spain, Kavanagh and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20121206

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