| People v McMillan |
| 2008 NY Slip Op 08040 [55 AD3d 1064] |
| October 23, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ShakeemMcMillan, Also Known as Shabba, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Alfred D. Chapleau of counsel), forrespondent.
Mercure, J. Appeal from a judgment of the County Court of Schenectady County (Clark, J.),rendered September 14, 2007, convicting defendant upon his plea of guilty of the crimes of criminalsale of a controlled substance in the third degree and criminal possession of a controlled substance inthe third degree.
In December 2005, defendant was charged in an indictment with two counts each of criminal saleof a controlled substance in the third degree and criminal possession of a controlled substance in thethird degree. Following the denial of his motion to suppress identification evidence, the matterproceeded to trial. On the day trial was scheduled to begin, defendant pleaded guilty to one count eachof the crimes charged in the indictment, with the understanding that he would receive a sentence oflifetime probation if he cooperated with law enforcement officials, including the United States Attorney'soffice and any other law enforcement agency deemed necessary; otherwise he would receive, at aminimum, a sentence of 3½ years in prison. Notably, defendant executed a written waiver of hisright to appeal.
After the United States Attorney's office showed no interest in defendant's cooperation, defendantconceded that he had agreed to cooperate with any law enforcement agency required, and indicated hiswillingness to cooperate with local authorities in order to satisfy the plea bargain. [*2]When defendant appeared for sentencing, however, the People indicatedthat he had failed to cooperate with law enforcement authorities. Defendant then moved to withdraw hisplea. County Court denied the motion and sentenced defendant, as a second felony offender, to anaggregate term of 3½ years in prison to be followed by two years of postrelease supervision.Defendant appeals, and we now affirm.
Initially, we reject defendant's argument that his waiver of his right to appeal is invalid in light of thedetailed, comprehensive written waiver that he executed when he entered his plea, as well as thecolloquy in County Court further explaining the waiver at that time and defendant's reaffirmation of thewaiver following the denial of his motion to withdraw his plea (see People v Ramos, 7 NY3d 737, 738 [2006]; People v Robles, 53 AD3d 686, 687[2008]; People v VanDusen, 49 AD3d1031, 1031-1032 [2008]; People vLewis, 48 AD3d 880, 880-881 [2008]). Although defendant's challenge to the voluntarinessof the plea survives his waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10[1989]; People v Lewis, 48 AD3d at 881), it is unpersuasive. A review of the record revealsthat defendant confessed to the facts underlying the crimes and, as noted above, agreed to the conditionthat he cooperate with "law enforcement officials," including the United States Attorney's office and anyother required law enforcement agency, in order to receive lifetime probation. Nevertheless, defendantfailed to cooperate with authorities, despite the fact that his sentencing was postponed forapproximately one year through multiple adjournments to allow him to meet the cooperationrequirement. Under these circumstances, County Court properly denied defendant's motion towithdraw his plea—which was based upon his unsubstantiated claims that he was innocent, hadno information to provide authorities, and did not understand that cooperation with the authorities was arequired condition of the plea—and imposed a term of imprisonment in light of defendant's failureto comply with the terms of the plea agreement (see People v Kirkland, 53 AD3d 673, 674 [2008]; People v Nicholson, 50 AD3d 1397,1398 [2008]; People v Davis, 30 AD3d893, 895 [2006], lv denied 7 NY3d 847 [2006]; People v Walker, 266 AD2d727, 728 [1999], lv denied 96 NY2d 909 [2001]).
Defendant's remaining challenges to the severity of his agreed-upon sentence, the denial of hissuppression motion and County Court's decision to resolve his motion to withdraw the plea without ahearing are precluded by his valid waiver of the right to appeal (see People v Kemp, 94 NY2d831, 833 [1999]; People v Robles, 53 AD3d at 688; People v VanDusen, 49 AD3dat 1031-1032).
Cardona, P.J., Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment is affirmed.