| People v Dozier |
| 2009 NY Slip Op 00831 [59 AD3d 987] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Timothy M.Dozier, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered August 8, 2007. The judgment convicted defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1]). We reject the challenge by defendant to the validity of his waiver of the right to appeal.Supreme Court was not required to engage in a particular litany to ensure that defendant's waiverof the right to appeal was voluntary, knowing and intelligent (see People v Callahan, 80NY2d 273, 283 [1992]; People vPointer, 43 AD3d 1413 [2007], lv denied 9 NY3d 1037 [2008]), and thus thewaiver of the right to appeal was not rendered invalid based on the court's failure to requiredefendant to articulate the waiver in his own words (see People v Ludlow, 42 AD3d 941 [2007]). The valid waiver bydefendant of the right to appeal includes the waiver of his right to invoke our "interest-of-justicejurisdiction to reduce the sentence" (People v Lopez, 6 NY3d 248, 255 [2006]).
Although the further contention of defendant that his plea was coerced and thus was notvoluntary survives his valid waiver of the right to appeal (see People v Adams, 57 AD3d 1385 [2008]; People v Thomas, 56 AD3d 1240[2008]), defendant did not move to withdraw the plea or to vacate the judgment of convictionand thus failed to preserve his contention for our review (see People v Russell, 55 AD3d 1314 [2008]; People v Elardo, 52 AD3d 1272[2008], lv denied 11 NY3d 787, 788 [2008]). In any event, that contention lacks merit.The court's statement informing defendant of the sentence that he could receive in the event thathe went forward with a suppression hearing and trial did not constitute a threat to impose agreater sentence unless defendant pleaded guilty to the crime charged (see People v SungMin, 249 AD2d 130, 131-132 [1998]; cf. People v Beverly, 139 AD2d 971 [1988]).Rather, the court's statement was a proper explanation of defendant's sentence exposure in theevent that defendant chose not to plead guilty (see People v Pagan, 297 AD2d 582[2002], lv denied 99 NY2d 562 [2002]). Furthermore, "[t]he fact that [the court] [*2]would not extend the [sentencing] offer once the suppressionhearing began does not support the inference that the plea was coerced" (People v Santalucia, 19 AD3d806, 807 [2005], lv denied 5 NY3d 856 [2005]). Present—Scudder, P.J.,Hurlbutt, Peradotto and Gorski, JJ.