| People v Gentry |
| 2009 NY Slip Op 09320 [68 AD3d 1353] |
| December 17, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RondueGentry, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Schenectady County (Clark,J.), rendered September 5, 2008, convicting defendant upon his plea of guilty of the crime ofattempted criminal sale of a controlled substance in the third degree.
In December 2007, defendant was alleged to have sold a quantity of cocaine to anundercover police officer during a buy/bust operation that was being conducted in the City ofSchenectady, Schenectady County. Shortly after the sale took place, defendant was arrested andlater charged by indictment with both criminal sale and criminal possession of a controlledsubstance in the third degree. Following a Mapp/Dunaway hearing, County Court(Drago, J.) concluded that probable cause existed for defendant's arrest and, as a result, deniedhis motion to suppress the drugs found on his possession at the time of his arrest, as well asevidence that he was identified by the undercover police officer shortly after the sale had takenplace. Subsequently, defendant pleaded guilty to attempted criminal sale of a controlledsubstance in the third degree and agreed, both orally and in writing, to waive his right to appealin return for a commitment that he receive a prison sentence of four years, followed by threeyears of postrelease supervision. Defendant was sentenced accordingly and now appeals.
Defendant does not deny that, after conferring with counsel, he agreed to waive his right[*2]to appeal or that the waiver was knowingly and voluntarilyentered. Instead, he argues that, as rendered, the waiver should not be interpreted to preclude achallenge to County Court's decision denying his motion to suppress. In that regard, defendantargues that he "was advised only that he was waiving his right to appeal from his 'plea.' "However, during the plea allocution, the court explained to defendant the consequences ofwaiving his right to appeal, and that explanation was reinforced by defendant's written waiverthat specifically stated that, among other things, he was waiving his right to appeal the court'srulings made on the motion to suppress (see People v Schmidt, 57 AD3d 1104 [2008]; People v McMillan, 55 AD3d1064, 1066 [2008], lv denied 11 NY3d 899 [2008]; People v Collins, 53 AD3d 932,933 [2008], lv denied 11 NY3d 831 [2008]).
Defendant also claims that County Court, in its sentence, erred by failing to give him creditpursuant to Penal Law § 70.30 (3) for the time he served in jail on an unrelated conviction.In that regard, in 1997, defendant was sentenced to two years in prison on a conviction forattempted criminal possession of a weapon in the third degree, which was subsequently vacatedas the result of a CPL article 440 motion decided after defendant had completed serving thissentence and had been released from prison. Defendant then entered a guilty plea to a lessercharge to satisfy the charge pending against him in connection with that incident and received aone-year jail sentence, which was deemed satisfied by the time he had already served in prisonprior to the conviction being vacated. Defendant now argues that, because he actually served twoyears in prison on that charge, County Court, in this matter, should have given him credit for theextra year he spent in prison and imposed a three-year sentence as opposed to the four years asstipulated by his plea bargain.
Penal Law § 70.30 (3) specifically provides that "[i]n any case where a person hasbeen in custody due to a charge that culminated in a dismissal or an acquittal, the amountof time that would have been credited against a sentence for such charge, had one been imposed,shall be credited against any sentence that is based on a charge for which a warrant orcommitment was lodged during the pendency of such custody" ([emphasis added];see People ex rel. Dunne v Jones, 77 AD2d 729 [1980]). The charge that resulted indefendant's two-year sentence was not dismissed and defendant was not acquitted of committingthat crime; rather, after the conviction was vacated, he entered a guilty plea to a lesser charge infull satisfaction of that charge and received a one-year sentence. Moreover, when arrested on thismatter, defendant was not in prison and had completed serving his sentence on the prior charge.As such, Penal Law § 70.30 (3), by its terms, is clearly not applicable and defendant wasnot entitled to any credit in connection with the time in jail he served on his prior sentence(see generally People v Meredith, 172 AD2d 364, 364-365 [1991], lv denied 78NY2d 1078 [1991]).
Finally, as to any suggestion by defendant that the sentence imposed was harsh andexcessive because it did not take into account the additional year he served on the unrelatedsentence, such an argument is foreclosed by his valid waiver of his right to appeal (see People v Walley, 63 AD3d1284, 1286 [2009]; People vDixon, 62 AD3d 1214, 1215 [2009], lv denied 13 NY3d 743 [2009]).
Cardona, P.J., Mercure, Spain and Malone Jr., concur. [*3]Ordered that the judgment is affirmed.