State of New York Supreme Court, Appellate Division Third Judicial Department
December 27, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ROBERT D. WALTON JR., APPELLANT.
Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered September 2, 2011, 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: Peters, P.J.
MEMORANDUM AND ORDER
Calendar Date: November 19, 2012
Before: Peters, P.J., Spain, Kavanagh, McCarthy and Egan Jr., JJ.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and waived his right to appeal. He was sentenced, in accordance with the plea agreement, as a second felony offender to six years in prison followed by 11/2 years of postrelease supervision. He now appeals.
Defendant's waiver of the right to appeal was valid. Although he expressed some uncertainty regarding the appeal waiver at the inception of the plea colloquy, County Court explained to defendant the nature of the right to appeal and made clear that this right was separate and distinct from the rights forfeited by the guilty plea. Defendant confirmed his understanding and declined further opportunity to discuss the waiver with counsel. Moreover, defendant executed a detailed written waiver. While such waiver was executed outside of court, he acknowledged his signature on the waiver and affirmed that he had discussed the waiver with counsel. Thus, we conclude that defendant knowingly, voluntarily and intelligently waived his right to appeal his conviction and sentence (see People v Tolliver, 92 AD3d 1024, 1024 ; People v McDuffie, 89 AD3d 1154, 1156 , lv denied 19 NY3d 964 ; People v Jean-Francois, 82 AD3d 1366, 1366 , lv denied 17 NY3d 797 ).
Defendant's valid appeal waiver precludes his challenge to County Court's denial of his request for a Wade hearing (see People v Kemp, 94 NY2d 831, 833 ; People v Barrier, 7 AD3d 885, 886 , lvs denied 3 NY3d 670 ; People v McGuffie, 294 AD2d 617, 618 , lv denied 98 NY2d 699 ). To the extent that defendant's ineffective assistance of counsel claim impacts the voluntariness of his plea and, therefore, survives his waiver of appeal, it is unpreserved for our review inasmuch as the record before us fails to indicate that he moved to withdraw his guilty plea or vacate the judgment of conviction (see People v Holmes, 75 AD3d 834, 835 , lv denied 15 NY3d 921 ; People v Garland, 69 AD3d 1122, 1123 , lv denied 14 NY3d 887 ). Were we to reach the issue, we would find that defendant was provided with meaningful representation (see People v Flake, 95 AD3d 1371, 1372 , lvs denied 19 NY3d 973, 974 ; People v Shurock, 83 AD3d 1342, 1344 ; People v Lee, 51 AD3d 1217, 1218 ).
Defendant's claim that he was improperly sentenced as a second felony offender is likewise unpreserved, as he failed to object at sentencing (see People v Washington, 89 AD3d 1140, 1142 , lv denied 18 NY3d 963 ; People v Glynn, 72 AD3d 1351, 1351-1352 , lv denied 15 NY3d 773 ). In any event, defendant pleaded guilty with the understanding that he would be sentenced as a second felony offender, admitted that he was the person previously convicted of the felony set forth in the predicate felony statement, and had ample opportunity to controvert any aspect of the prior conviction. Under the circumstances, we find substantial compliance with CPL 400.21 (3) (see People v Smith, 89 AD3d 1328, 1328-1329 ; People v Washington, 89 AD3d at 1142; People v Califano, 84 AD3d 1504, 1506-1507 , lv denied 17 NY3d 805 ).
Finally, defendant's assertion that his sentence should be reduced in the interest of justice is barred by his valid appeal waiver (see People v White, 96 AD3d 1299, 1300 , lv denied 19 NY3d 1029 ; People v Board, 75 AD3d 833, 834 ).
Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur.
ORDERED that the judgment is affirmed.
Robert D. Mayberger Clerk of the Court
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