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People v. Tetreault

Supreme Court of New York, Third Department

July 27, 2017

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
NAPOLEAN N. TETREAULT, Appellant.

          Calendar Date: June 2, 2017.

          Linda B. Johnson, East Greenbush, for appellant.

          Matthew Van Houten, District Attorney, Ithaca (Gary Surdell of counsel), for respondent.

          Before: Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

          MEMORANDUM AND ORDER

          Peters, P.J.

         Appeal from a judgment of the County Court of Cortland County (Campbell, J.), rendered June 19, 2015, convicting defendant upon his plea of guilty of the crimes of burglary in the third degree and unlawful manufacture of methamphetamine in the third degree.

         Defendant was charged by indictment with burglary in the third degree and two counts of petit larceny stemming from his theft from a convenience store. Thereafter, he was charged in a separate indictment with unlawful manufacture of methamphetamine in the third degree and endangering the welfare of a child following the seizure of equipment and materials that defendant allegedly possessed and intended to use to produce methamphetamine. In full satisfaction of those two indictments, defendant pleaded guilty to burglary in the third degree and unlawful manufacture of methamphetamine 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 4 to 6 years in prison followed by two years of postrelease supervision. Defendant appeals, and we affirm.

         Defendant's claims that his guilty plea was not voluntary and that counsel provided ineffective assistance with respect to the plea are unpreserved for our review, as he did not raise them in an appropriate postallocution motion (see People v Rich, 140 A.D.3d 1407, 1407 [2016], lv denied 28 N.Y.3d 936');">28 N.Y.3d 936 [2016]; People v Lewis, 118 A.D.3d 1125, 1125 [2014], lv denied 24 N.Y.3d 1003');">24 N.Y.3d 1003 [2014]). Further, the narrow exception to the preservation rule is inapplicable inasmuch as defendant "made no statements during the plea allocution that negated an element of the crime[s] or otherwise called into doubt his guilt or the voluntariness of his plea" (People v Darrell, 145 A.D.3d 1316, 1317 [2016]; see People v Lopez, 71 N.Y.2d 662, 666 [1988]). Were we to consider these claims, we would find that defendant's plea was knowingly, voluntarily and intelligently entered with the benefit of meaningful representation (see People v Briggs, 138 A.D.3d 1355, 1356 [2016], lv denied 28 N.Y.3d 927');">28 N.Y.3d 927 [2016]; People v Pickett, 128 A.D.3d 1275, 1276 [2015], lvs denied 26 N.Y.3d 930, 933 [2015]).

         Defendant's challenge to County Court's denial of his motion to suppress statements made to law enforcement and physical evidence seized upon his arrest in the burglary case is precluded by his uncontested appeal waiver, which the record establishes was knowing, voluntary and intelligent (see People v Hakkenberg, 142 A.D.3d 1251, 1252 [2016], lv denied 28 N.Y.3d 1072');">28 N.Y.3d 1072 [2016]; People v Zippo, 136 A.D.3d 1222, 1222-1223 [2016], lv denied 27 N.Y.3d 1141');">27 N.Y.3d 1141 [2016]). To the extent that defendant raises arguments concerning his motion to suppress statements made to police in the methamphetamine case, such arguments are precluded by his valid appeal waiver and also by his guilty plea that was entered before County Court rendered a decision on his motion (see People v Barton, 113 A.D.3d 927, 928 [2014]; People v Morrison, 106 A.D.3d 1201, 1202 [2013], lv denied 23 N.Y.3d 1065');">23 N.Y.3d 1065 [2014]; People v Morton, 84 A.D.3d 1507, 1507 [2011], lv denied 18 N.Y.3d 884');">18 N.Y.3d 884 [2012]). Defendant's contention that physical evidence that the police seized in the methamphetamine case must be suppressed is likewise precluded by his valid plea and appeal waiver (see People v Barton, 113 A.D.3d at 928; People v Williams, 6 A.D.3d 746, 747 [2004], lv denied 3 N.Y.3d 650');">3 N.Y.3d 650 [2004]; People v Costa, 4 A.D.3d 675, 676 [2004], lvs denied 2 N.Y.3d 797, 798 [2004]), and is also unpreserved for our review inasmuch as defendant failed to raise it in his suppression motion (see People v Durham, 146 A.D.3d 1070, 1072 [2017], lv denied 29 N.Y.3d 997');">29 N.Y.3d 997 [2017]; People v Shoga, 89 A.D.3d 1225, 1230 [2011], lv denied 18 N.Y.3d 886');">18 N.Y.3d 886 [2012]).

          Garry, Egan Jr., Rose and ...


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