| People v Perry |
| 2008 NY Slip Op 03253 [50 AD3d 1244] |
| April 11, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Bernard Perry,Appellant. |
—[*1] Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Franklin County (Main, Jr.,J.), rendered March 6, 2006, convicting defendant upon his plea of guilty of the crime ofattempted rape in the first degree.
Defendant was charged with rape in the first degree based upon allegations that he engagedin sexual intercourse with the female victim by forcible compulsion. Defense counsel and theprosecution subsequently entered into a stipulation in lieu of motions under which they agreed tocertain pretrial hearings, including a Huntley hearing, and to open file discovery.Thereafter, defense counsel made a discovery motion pursuant to CPL 240.20 to preclude theprosecution from introducing certain evidence at trial, which was denied by County Court. Theprosecution, in turn, made a discovery application pursuant to CPL 240.40 to obtain tissuesamples from defendant for DNA testing, which was granted by County Court. Following theHuntley hearing, County Court denied defendant's motion to suppress two statements thathe gave to the police. Prior to trial, defendant entered into a plea agreement under which hepleaded guilty to attempted rape in the first degree and waived his right to appeal in exchange fora sentence not to exceed four years in prison, to be followed by a period of postreleasesupervision. The plea agreement further provided that an order of protection would be entered infavor of the victim. Defendant was subsequently sentenced to the agreed upon prison term andfive years of [*2]postrelease supervision. He now appeals.
We turn first to defendant's contention that his guilty plea was not knowingly, voluntarily orintelligently entered. Although defendant's waiver of his right to appeal does not foreclose himfrom raising this claim, his failure to make a motion to withdraw his plea or vacate the judgmentof conviction renders it unpreserved (seePeople v Baldwin, 36 AD3d 1024, 1024 [2007]; People v Tuper, 256 AD2d 636,636 [1998]). Nevertheless, even if we were to consider it, we would find it to be lacking in merit.The transcript of the plea proceedings discloses that County Court comprehensively explainedthe ramifications of defendant's guilty plea, including his waiver of the right to appeal, and thatdefendant communicated his understanding on the record. Defendant proceeded to allocute to thecrime of attempted rape in the first degree and County Court accepted his guilty plea. Contrary todefendant's suggestion, there is nothing in the record to indicate that he was under the influenceof a prescription drug that rendered him incapable of entering a voluntary plea. Under thecircumstances presented, we find that the guilty plea and waiver of the right to appeal wereknowing, voluntary and intelligent (seePeople v Olivieris, 40 AD3d 1313, 1314 [2007]).
In light of defendant's valid waiver of the right to appeal, he is precluded from challengingthe denial of his suppression motion and the severity of his sentence (see People v Mendez, 45 AD3d1109, 1110 [2007]), as well as the factual sufficiency of his plea allocution (see People v Simmons, 45 AD3d882, 882-883 [2007]). He is also precluded from raising claims that do not implicate hisconstitutional rights (see People vMorelli, 46 AD3d 1215, 1216-1217 [2007]), such as County Court's rulings ondiscovery matters (see generally Matter of Brown v Grosso, 285 AD2d 642, 643-644[2001], lv denied 97 NY2d 605 [2001]). Furthermore, defendant is foreclosed by hiswaiver of the right to appeal from challenging the effectiveness of his counsel except to theextent that it impacts the voluntariness of his plea (see People v McDuffie, 43 AD3d 559, 560 [2007], lvdenied 9 NY3d 992 [2007]). His claims in this regard are unpersuasive. Accordingly, we findno reason to disturb the judgment of conviction.
Cardona, P.J., Carpinello, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.