| People v Belle |
| 2010 NY Slip Op 04879 [74 AD3d 1477] |
| June 10, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Isaiah Belle,Appellant. |
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Egan Jr., J. Appeal from a judgment of the County Court of Schenectady County (Giardino,J.), rendered September 19, 2008, convicting defendant upon his plea of guilty of the crimes ofcriminal possession of a weapon in the second degree (two counts), criminal possession of aweapon in the third degree (two counts), criminal possession of a controlled substance in thethird degree (two counts), resisting arrest and unlawful possession of marihuana.
In August 2007, at around 3:00 a.m., police received a telephone call reporting that shots hadbeen fired in the vicinity of Hulett Street and Lincoln Avenue in the City of Schenectady,Schenectady County. The caller reported that the shooter was wearing a blue shirt with whitestripes, light colored shorts and a white hat. When police arrived at the location a few minuteslater, they observed a man matching the description of the suspect. Upon being ordered to stop,the man, who was later identified as defendant, fled into a nearby backyard, resulting in a footchase. During this pursuit, defendant appeared to throw something over a fence into aneighboring yard. Upon tackling defendant, police noticed that a baggie with a white powderysubstance had fallen partially out of the pocket of defendant's pants. The police proceeded toarrest defendant, and found on his person a stun gun and marihuana. The police then searchedthe other side of the fence and recovered a handgun. Back at police headquarters, defendantmade an oral statement to a detective, "The cocaine was mine, but it was for personal use."
Defendant was charged with two counts each of criminal possession of a weapon in the[*2]second degree and third degree, two counts of criminalpossession of a controlled substance in the third degree, and one count each of resisting arrestand unlawful possession of marihuana. After a Huntley hearing, defendant's motion tosuppress the oral statement made at police headquarters was denied. AfterMapp/Dunaway hearings, defendant's motion to suppress all evidence obtained by policewas denied.
While no plea offers were made by the People, on the date of trial, County Court, over thePeople's objection, indicated to defendant that, upon a plea of guilty to the entire indictment, itwould sentence defendant to a six-year prison term with four years of postrelease supervision.Defendant consulted with counsel and then elected to plead guilty to all charges contained in theindictment. As part of his plea, defendant waived his right to appeal, preserving his right toappeal the suppression rulings. Sentencing was adjourned three times to provide defendant withtime to review certain evidence, to obtain a second opinion from a second assigned counsel andto decide whether to make a motion to withdraw his plea. After electing not to move to withdrawhis plea, defendant was sentenced to an aggregate prison term of five years with four years ofpostrelease supervision.[FN*]Defendant now appeals.
Initially, by failing to move to withdraw his plea or vacate the judgment of conviction,defendant failed to preserve his claim that his plea was involuntary (see People v Swindell, 72 AD3d1340, 1341 [2010]; People vScitz, 67 AD3d 1251, 1251 [2009]). Moreover, nothing in the plea colloquy casts doubtupon defendant's guilt so as to trigger the narrow exception to the preservation requirement (see People v Stoddard, 67 AD3d1055, 1055-1056 [2009], lv denied 14 NY3d 806 [2010]; People v Buskey, 62 AD3d 1164,1165 [2009]; People v Terry, 55AD3d 1149, 1150 [2008], lv denied 11 NY3d 931 [2009]). In any event, based onour review of the record, defendant's plea and waiver of appeal were made knowingly,voluntarily and intelligently (see Peoplev Lopez, 6 NY3d 248, 256 [2006]; People v Callahan, 80 NY2d 273, 280[1992]; People v Romano, 45AD3d 910, 914-915 [2007], lv denied 10 NY3d 770 [2008]; People v Mitchetti, 13 AD3d 673,673 [2004], lv denied 4 NY3d 766 [2005]). The plea colloquy reveals that defendantvoluntarily pleaded guilty and admitted to the facts forming the basis of the charges after heconferred with counsel. County Court explained the terms of the agreement and the potential ofeither an acquittal or for a greater sentence if convicted after trial. County Court also advisedthat, except with respect to certain suppression issues, defendant was waiving his right to appealas separate and apart from those rights automatically forfeited upon a plea of guilty (seePeople v Lopez, 6 NY3d at 256).
Next, in according deference to County Court's credibility determinations (see People v Button, 56 AD3d1043, 1044 [2008], lv dismissed 12 NY3d 781 [2009]), we find, based on the caller'sdescription of the shooter and upon defendant's act in fleeing upon being confronted, that thepolice had reasonable suspicion to believe a crime had been committed such that defendant'spursuit and detention were justified (see People v Hollman, 79 NY2d 181, 185 [1992];People v Nesbitt, 56 AD3d816, 818 [2008], lv denied 11 NY3d 928 [2009]; People v Cruz, 14 AD3d 730, 732 [2005], lv denied 4NY3d 852 [2005]; People v Lewis, 277 AD2d 603, 605 [2000], lv denied 95NY2d 966 [2000]). Accordingly, the gun discarded during the chase and the bag of whitepowdery substance were not subject to suppression and provided probable cause for defendant's[*3]arrest and search (see People v Nesbitt, 56 AD3d at818; People v Riley, 290 AD2d 568, 569 [2002], lvs denied 98 NY2d 650, 654[2002]; People v Lewis, 277 AD2d at 605).
Next, defendant's valid appeal waiver precludes our review of his contention that he wasdenied the effective assistance of counsel, except insofar as such claim impacts the voluntarinessof his plea (see People v Leigh, 71AD3d 1288, 1288 [2010]; People vAnderson, 63 AD3d 1191, 1193 [2009], lv denied 13 NY3d 794 [2009]) and, tothat extent, is unpreserved due to his failure to move to withdraw his plea or vacate the judgmentof conviction (see People vVolfson, 69 AD3d 1123, 1124 [2010]; People v Dobrouch, 59 AD3d 781, 781 [2009], lv denied12 NY3d 853 [2009]). In any event, were we to consider this issue we would find that defendantwas provided with meaningful representation.
Defendant's conclusory allegations of prosecutorial misconduct and his claim regardingCounty Court's failure to conduct a Wade hearing are also not preserved for appellatereview (see CPL 470.05 [2]; People v Carlisle, 50 AD3d 1451, 1451 [2008], lv denied10 NY3d 957 [2008]; People vHernandez, 44 AD3d 1072, 1072 [2007], lv denied 10 NY3d 766 [2008]), andwe decline to exercise our interest of justice jurisdiction with respect to these issues (seeCPL 470.15 [6] [a]).
Finally, defendant's waiver of the right to appeal precludes his claim that his sentence isharsh and excessive (see People vThomas, 71 AD3d 1231, 1233 [2010]). Defendant's remaining contentions have beenreviewed and are found to be without merit.
Spain, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: The District Attorney requestedthat defendant's cooperation in another, unrelated criminal case be considered at sentencing.