Calendar Date: January 9, 2018
J. Lamb, Troy, for appellant.
David Soares, District Attorney, Albany (Emily A. Schultz of
counsel), for respondent.
Before: Garry, P.J., Clark, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
from a judgment of the County Court of Albany County
(Herrick, J.), rendered December 30, 2015, convicting
defendant upon his plea of guilty of the crime of criminal
sale of a controlled substance in the third degree.
pleaded guilty to criminal sale of a controlled substance in
the third degree and waived his right to appeal. At
sentencing, defendant made a pro se motion to withdraw his
plea, claiming that he was confused as to why a prior, more
favorable plea agreement had been withdrawn. County Court
denied the motion and sentenced defendant as a second violent
felony offender, in accordance with the plea agreement, to a
prison term of six years, followed by three years of
postrelease supervision, the sentence to run concurrently
with a sentence he was currently serving. Defendant appeals.
a review of the plea colloquy establishes that
defendant's waiver of the right to appeal was valid
inasmuch as County Court specifically advised defendant of
the separate and distinct nature of the appeal waiver, which
defendant, both verbally and by executing a written appeal
waiver, acknowledged he understood (see People v
Gray, 152 A.D.3d 1068, 1069 , lv denied
30 N.Y.3d 980');">30 N.Y.3d 980 ; People v Pixley, 150 A.D.3d
1555, 1556-1557 , lv denied 30 N.Y.3d 952');">30 N.Y.3d 952
). Defendant's challenge to the voluntariness of
the guilty plea, however, is not precluded by his waiver of
appeal and has been preserved by his unsuccessful motion to
withdraw his guilty plea (see People v Gray, 152
A.D.3d at 1070; People v Massia, 131 A.D.3d 1280,
1281 , lv denied 26 N.Y.3d 1041');">26 N.Y.3d 1041 ).
Nevertheless, we find defendant's contention to be
without merit. The plea colloquy establishes that defendant
was aware that the prior plea bargain had been withdrawn.
Defendant unequivocally acknowledged that he understood the
terms of the plea agreement, understood the consequences of
entering a guilty plea, had enough time to discuss the matter
with counsel and was not being coerced into accepting the
plea agreement (see People v Brown, 154 A.D.3d 1004,
1006-1007 ). Nothing in the plea colloquy reflects any
confusion on the part of defendant regarding the nature of
the plea agreement. As such, we are satisfied that
defendant's plea was knowingly, voluntarily and
intelligently entered (see id. at 1007; People v
McGowan, 117 A.D.3d 1202, 1202 ).
extent that defendant seeks specific performance of the
initial, more favorable plea offer that was withdrawn, we
find that "this principle does not apply in this case
insofar as defendant never entered a plea of guilty [in
connection with the initial plea offer] and never acted to
his detriment in reliance upon that plea [offer]"
(People v Rhodes, 172 A.D.2d 936, 937 , lv
denied 78 N.Y.2d 973');">78 N.Y.2d 973 ). Notably, the fact that
defendant waived a suppression hearing at the time of the
initial plea offer did not prejudice defendant inasmuch as he
subsequently accepted the instant plea offer and such waiver
of suppression issues is a consequence, not a condition, of a
plea (see People v Weldon, 154 A.D.3d 1009, 1010
; People v White, 300 A.D.2d 830, 832 ,
lv denied 99 N.Y.2d 633');">99 N.Y.2d 633 ). Defendant's
remaining contentions, including that he received ineffective
assistance of counsel, have been reviewed and found to be
lacking in merit.
P.J., Clark, Mulvey and ...