| People v Flake |
| 2012 NY Slip Op 03481 [95 AD3d 1371] |
| May 3, 2012 |
| Appellate Division, Third Department |
| 2—The People of the State of New York, Respondent, vJustin Flake, Also Known as Ice, Appellant. |
—[*1] Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered January 14, 2011, convicting defendant upon his plea of guilty of thecrime of criminal sale of a controlled substance in the third degree.
In July 2010, defendant was charged by indictment with two counts of criminal sale of acontrolled substance in the third degree and two counts of criminal possession of a controlledsubstance in the third degree. The charges stemmed from allegations that defendant twice soldcocaine to a confidential informant. After conducting a Wade hearing, County Courtconcluded that the identification procedure employed by the police in securing the confidentialinformant's identification of defendant was not unduly suggestive and denied his motion tosuppress. Thereafter, defendant entered a guilty plea to one count of criminal sale of a controlledsubstance in the third degree, waived his right to appeal, and was sentenced as a second felonyoffender—in accord with the plea agreement—to 4½ years in prison, plus twoyears of postrelease supervision. Defendant now appeals, claiming that County Court improperlydenied his motion to suppress, his plea allocution was factually insufficient, he was denied theeffective assistance of counsel and the sentence imposed was harsh and excessive.[*2]
Defendant's challenge to County Court's denial of hismotion to suppress is precluded by his waiver of his right to appeal[FN*](see People v Kemp, 94 NY2d 831, 833 [1999]; People v Spruill, 90 AD3d 1242, 1243 [2011]; People v Ballard, 88 AD3d 1025,1026 [2011], lv denied 18 NY3d 955 [2012]). Defendant's challenge to the factualsufficiency of his guilty plea is also barred by the appeal waiver and, moreover, is unpreserved asthere is no indication on this record that he moved to withdraw his plea or vacate the judgment ofconviction (see People v Taylor, 89AD3d 1143, 1143 [2011]; People vPlanty, 85 AD3d 1317, 1317-1318 [2011], lv denied 17 NY3d 820 [2011]; People v Richardson, 83 AD3d1290, 1292 [2011], lv denied 17 NY3d 821 [2011]).
As for defendant's claim regarding ineffective assistance of counsel, he argues that trialcounsel should have moved to suppress audiotapes made by the confidential informant when thesales allegedly took place and maintains that the specter of those tapes being used as evidenceagainst him impacted the voluntariness of his guilty plea. Assuming that counsel's failure to makesuch a motion could raise a question regarding the voluntariness of defendant's guilty plea (see People v Gentry, 73 AD3d1383, 1384 [2010]), he has not preserved this issue because he did not move to withdraw hisplea or vacate the judgment of conviction (see People v Irvis, 90 AD3d 1302, 1304 [2011]; People v Cassara, 88 AD3d 1069,1069 [2011]). In any event, the record establishes that defendant obtained a favorable pleaagreement, stated during his plea allocution that he was satisfied with counsel's efforts on hisbehalf and acknowledged having ample time to discuss with counsel the terms of the guilty pleabefore entering it. Therefore, were we to reach the issue we would find that defendant wasafforded meaningful representation (see People v Gentry, 73 AD3d at 1384).
Finally, defendant's valid appeal waiver precludes any claim that his sentence was harsh orexcessive (see People v Jones, 88AD3d 1029 [2011], lv denied 18 NY3d 859 [2011]; People v Richardson, 83AD3d at 1292).
Peters, P.J., Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.
Footnote *: Defendant does not challengethe validity of the waiver of his right to appeal and, upon our review, we find it was knowingly,voluntarily and intelligently entered (seePeople v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Ballard, 88 AD3dat 1026).