| People v Garland |
| 2010 NY Slip Op 00409 [69 AD3d 1122] |
| January 21, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v KejayGarland, Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Dianna R.H. Winters of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Schenectady County (Drago,J.), rendered October 27, 2008, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the third degree.
Following an investigation into a drug distribution operation in Schenectady County andAlbany County, defendant was charged with eight drug-related offenses. Defendant successfullymoved to dismiss four of the eight charges against him and, in full satisfaction of thoseremaining charges, defendant thereafter pleaded guilty to one count of criminal possession of acontrolled substance in the third degree. In accordance with the plea agreement, defendantwaived his right to appeal and was sentenced as a second felony offender to a five-year prisonterm with two years of postrelease supervision. Defendant appeals.
Defendant's failure to move to either withdraw his plea or vacate the judgment of convictionrenders his challenge to the voluntariness of his plea unpreserved for appellate review (see People v Cintron, 62 AD3d1157, 1158 [2009], lv denied 13 NY3d 742 [2009]). The exception to thepreservation requirement is not applicable as the plea colloquy did not negate an essentialelement of the crime and defendant's guilt was adequately established (see id.).
To the extent that defendant claims that ineffective assistance of counsel affected thevoluntariness of his plea, which claim survives defendant's valid waiver of his right to appeal (see People v Crudup, 45 AD3d1111, 1111 [2007]), that claim is unpreserved given defendant's failure to move to withdrawthe plea or vacate the judgment of conviction (see People v Gorrell, 63 AD3d 1381, 1381 [2009], lvdenied 13 NY3d 744 [2009]). In any event, the record reveals that defendant was providedwith meaningful representation (seePeople v Dobrouch, 59 AD3d 781, 781 [2009], lv denied 12 NY3d 853 [2009]).
Defendant's challenges related to the search warrant do not survive his valid waiver of hisright to appeal (see People vAnderson, 63 AD3d 1191, 1193 [2009], lv denied 13 NY3d 794 [2009]).Similarly, defendant's challenge to County Court's denial of his suppression motion does notsurvive the waiver of his right to appeal (see People v Kemp, 94 NY2d 831, 833 [1999]).Finally, the waiver also precludes his claim that the negotiated sentence is harsh and excessive(see People v Walley, 63 AD3d1284, 1286 [2009]).
Spain, J.P., Rose, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.