Calendar Date: January 10, 2017
A. Maloney, Albany, for appellant.
David Soares, District Attorney, Albany (Michael C. Wetmore
of counsel), for respondent.
Before: Garry, J.P., Rose, Devine, Clark and Mulvey, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (McDonough, J.),
rendered January 16, 2015 in Albany County, convicting
defendant upon his plea of guilty of the crimes of criminal
possession of a controlled substance in the third degree (two
counts), criminally using drug paraphernalia in the second
degree, unlawful possession of marihuana and criminal
possession of a controlled substance in the seventh degree.
placed defendant's apartment under surveillance after
receiving a tip that drug sales had been occurring there.
During the course of the stakeout, officers observed a woman
enter and quickly exit the apartment. A traffic stop of the
woman's vehicle was effected and cocaine was recovered.
She pointed to defendant as the supplier of that cocaine and,
based upon her supporting deposition and the observations of
investigators, a search warrant for defendant's apartment
was issued and executed. Cocaine and marihuana were recovered
from the apartment and defendant, after having been taken
into custody and Mirandized, made incriminating statements to
indictment was thereafter handed up that, as amended, charged
defendant with two counts of criminal possession of a
controlled substance in the third degree, criminally using
drug paraphernalia in the second degree, unlawful possession
of marihuana and criminal possession of a controlled
substance in the seventh degree. Following a hearing, Supreme
Court declined to suppress physical evidence recovered during
the search of defendant's apartment or his statements to
police. Defendant proceeded to trial but, shortly after the
People rested their case, pleaded guilty to the indictment
and waived his right to appeal from the conviction and
sentence. Supreme Court promised to sentence defendant, a
second felony offender, to an aggregate prison term of six
years to be followed by postrelease supervision of three
years. The agreed-upon sentence was imposed, and defendant
does not challenge the validity of his waiver of appeal and,
in any case, our review of the plea colloquy and the written
waiver he executed after conferring with counsel confirms
that it was knowingly, intelligently and voluntarily entered
into (see People v Sanders, 25 N.Y.3d 337, 341-342
; People v Lopez, 6 N.Y.3d 248, 257 ).
Contrary to defendant's contention, the appeal waiver
encompassed "any and all matters that took place during
the entire pendency of this action" and precludes his
arguments regarding the denial of his suppression motion
(see People v Sanders, 25 N.Y.3d at 342; People
v Kemp, 94 N.Y.2d 831, 833 ; People v
Simmons, 129 A.D.3d 1200, 1201 , lv
denied 27 N.Y.3d 1075');">27 N.Y.3d 1075 ).
remaining claim that he received ineffective assistance of
counsel, to the extent that it survives his appeal waiver, is
unpreserved for our review given his failure to make an
appropriate postallocution motion (see People v
Simmons, 129 A.D.3d at 1201; People v Smith,
121 A.D.3d 1131, 1132 , lv denied 24 N.Y.3d
1123 ). He does not claim, and the record does not
show, that this case falls within the narrow exception to the
preservation rule (see People v Williams, 27 N.Y.3d
212, 214 ; People v Lopez, 71 N.Y.2d 662, 666
final matter, a discrepancy exists between certain forms and
the sentencing minutes with respect to count four of the
indictment which, as amended at trial, charged defendant with
unlawful possession of marihuana. Defendant pleaded guilty to
the amended count and was appropriately sentenced by Supreme
Court, but both the certificate of conviction and uniform
sentence and commitment form refer to a conviction upon the
original count of criminal possession of marihuana in the
fifth degree. The judgment need not be disturbed under these
circumstances, but remittal is required so that Supreme Court
may correct the error on both forms (see People v
Minaya, 54 N.Y.2d 360, 364-365 , cert
denied 455 U.S. 1024');">455 U.S. 1024 ; People v Gathers,
106 A.D.3d 1333, 1334 , lv denied 21 N.Y.3d
J.P., Rose, Clark and Mulvey, JJ., concur.
that the judgment is affirmed, and matter remitted for entry
of an amended certificate of conviction and an ...