| People v Hall |
| 2017 NY Slip Op 01026 [147 AD3d 1151] |
| February 9, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Robert J.Hall, Appellant. |
Salvatore Adamo, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Mulvey, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered October 21, 2014, convicting defendant upon his plea of guilty of the crime ofpromoting a sexual performance by a child.
Pursuant to a plea agreement, defendant waived indictment and pleaded guilty to promoting asexual performance by a child as charged in a superior court information. The plea agreementalso satisfied other pending charges and included a waiver of appeal. Consistent with thatagreement,[FN1] CountyCourt imposed a prison sentence of 2
We affirm. Initially, contrary to defendant's claim, his combined oral and written appealwaiver was knowing, voluntary and intelligent (see People v Sanders, 25 NY3d 337, 339-341 [2015]; People v Lopez, 6 NY3d 248, 256[2006]; People v Toledo, 144 AD3d1332, 1332 [2016]). In that regard, defendant was advised that an appeal waiver was acondition of the plea and of its separate and distinct nature (see People v Lopez, 6 NY3dat 256). Defendant then executed a written waiver of appeal in open court after consulting withhis attorney, indicating [*2]that he understood it (see id.;People v Toledo, 144 AD3d at 1333). Given the valid appeal waiver, defendant'schallenge to the sentence as harsh and excessive is precluded (see People v Lopez, 6NY3d at 256-257; People vDickson-Eason, 143 AD3d 1013, 1014 [2016], lv denied 28 NY3d 1123 [2016]).While his challenge to the plea as involuntary survives the appeal waiver, it was not preserved byan appropriate postallocution motion, and defendant made no statements during the plea colloquythat triggered the exception to the preservation requirement (see People v Williams, 27 NY3d 212, 219-220 [2016]; People vLopez, 71 NY2d 662, 666 [1988]; People v Austin, 141 AD3d 956, 957 [2016]). Were the issueproperly preserved, we would find that the plea was knowing, voluntary and intelligent (seePeople v Fiumefreddo, 82 NY2d 536, 546-548 [1993]).
Defendant next claims that he was denied the effective assistance of counsel due to counsel'sfailure to move to suppress his statements to police at his residence after the execution of asearch warrant following an undercover investigation. While this claim survives his appealwaiver to the extent that it implicates the voluntariness of his plea, it is unpreserved for ourreview (see People v Lewis, 143AD3d 1183, 1185 [2016]). "In any event, the failure to request a suppression hearing,standing alone, does not establish that defense counsel provided ineffective assistance" (People v Cooper, 126 AD3d 1046,1047-1048 [2015] [citation omitted], lv denied 26 NY3d 966 [2015]; see People vRivera, 71 NY2d 705, 709 [1988]), "particularly in the absence of any basis upon which toconclude that a defendant had a colorable claim or that counsel's actions were not premised upona legitimate strategy" (People vSoprano, 135 AD3d 1243, 1243-1244 [2016] [internal quotation marks and citationomitted], lv denied 27 NY3d 1007 [2016]). On the limited record before us, defendanthas not demonstrated that he had a viable claim for suppression of his statement or that counsellacked a strategic reason for proceeding without a pretrial motion to suppress. Further, defendantassured County Court during the plea allocution that he had sufficient time to speak with hisattorney about the charges, any defenses and the plea offer and that he was satisfied withcounsel's representation and defendant expressly waived any pretrial hearings; counsel secured afavorable plea deal with reduced sentencing that resolved other pending charges, a deal whichmay not have been available after a suppression hearing. Thus, were the issue preserved, wewould find that the record does not support defendant's claim that he was denied meaningfulrepresentation (see People v Caban,5 NY3d 143, 152 [2005]; People v Benevento, 91 NY2d 708, 712-714 [1998];People v Cooper, 126 AD3d at 1048).[FN2]
Peters, P.J., McCarthy, Egan Jr. and Rose, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:When the People recited the pleaterms, they stated that the promised sentence was 3
Footnote 2:To the extent that defendant'sclaim relies upon matters outside the record on appeal, they are more properly raised in a motionto vacate pursuant to CPL article 440 (see People v Perkins, 140 AD3d 1401, 1403 [2016], lvdenied 28 NY3d 1126 [2016]).