| People v Stone |
| 2013 NY Slip Op 02294 [105 AD3d 1094] |
| April 4, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DavidJ. Stone, Appellant. |
—[*1] James Sacket, District Attorney, Schoharie (Michael L. Breen of counsel), forrespondent.
Spain, J. Appeal from a judgment of the County Court of Schoharie County (BartlettIII, J.), rendered July 20, 2011, convicting defendant upon his plea of guilty of the crimeof attempted criminal possession of a weapon in the second degree.
Following a traffic stop of defendant's vehicle, a State Trooper detected the odor ofmarihuana and defendant admitted to having a marihuana pipe in the vehicle. Asubsequent search of the vehicle revealed a quantity of marihuana in the center consoleand, in the trunk, a bag containing a machine gun. Indicted on one count each of criminalpossession of a weapon in the second and third degrees, defendant moved to suppress theevidence. After a hearing, County Court denied defendant's motion, concluding, amongother findings, that police had probable cause to search his vehicle. Pursuant to a pleaagreement and with the assistance of counsel, defendant thereafter entered a guilty pleato the reduced charge of attempted criminal possession of a weapon in the second degreeand was sentenced, as an admitted second felony offender, to a prison term of three yearsand five years of postrelease supervision.[FN*]As part of the agreement, [*2]defendant waived his rightto appeal. Defendant now appeals, and we affirm.
Defendant's sole challenge on appeal, to County Court's ruling denying suppression,is foreclosed by his valid waiver of appeal (see People v Kemp, 94 NY2d 831,833 [1999]; see also People vBradshaw, 18 NY3d 257, 264-265 [2011]). A review of the record disclosesthat, at the outset of the plea proceedings, the prosecutor recited the plea terms includingthe appeal waiver, which defense counsel confirmed, and the court proceeded to explainthe trial-related rights that defendant would be forgoing by his guilty plea, and theconsequences thereof, and elicited defendant's understanding of the agreement. The courtseparately explained the right to appeal, distinguished the appeal waiver from the otherrights that defendant was foregoing as a result of his plea, ascertained that he haddiscussed it with counsel and understood that he was "giving up [his] right to appeal tothe fullest extent . . . that [the appeal] waiver is legally and constitutionallypermitted," including "complaining of any errors that may have occurred" to that point.Defendant, in open court, then signed a written document, which included a waiver ofthe right to appeal "all issues and matters" and expressly provided that he was "giv[ing]up [his] right to claim that the police did anything illegal . . . or that anyevidence obtained against [him] was done so illegally."
While County Court's suppression decision was not explicitly referenced in theappeal waiver, which is "the better practice" (People v Kemp, 94 NY2d at 833),no "particular litany" was required by the court during its thorough allocution (Peoplev Moissett, 76 NY2d 909, 910 [1990]). Moreover, the colloquy made perfectly clearthat the oral and written appeal waivers were unqualified and "intended comprehensivelyto cover all aspects of the case" (People v Muniz, 91 NY2d 570, 575 [1998]),including preplea suppression rulings. Thus, review of the court's suppression ruling isprecluded by defendant's valid appeal waiver (see People v Kemp, 94 NY2d at833; People v Colon, 101AD3d 1161, 1161 [2012]; People v Junior, 97 AD3d 984, 984-985 [2012], lvdenied 19 NY3d 1103 [2012]; People v Spruill, 90 AD3d 1242, 1243 [2011], lvdenied 18 NY3d 998 [2012]).
Peters, P.J., Lahtinen and Stein, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Although during theplea colloquy County Court had agreed to impose a period of three years of postreleasesupervision, at sentencing the court informed defendant that this was not permissiblegiven his second felony offender status, which required five years of postreleasesupervision. The court offered defendant the opportunity to withdraw his guilty plea,which defendant expressly declined.