| People v Buckler |
| 2011 NY Slip Op 00110 [80 AD3d 889] |
| January 13, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JosephBuckler, Appellant. |
—[*1] Jason Kovacs, Special Prosecutor, Kingston, for respondent.
Stein, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered July 14,2008 in Ulster County, convicting defendant upon his plea of guilty of the crimes of burglary inthe first degree (two counts), robbery in the first degree, robbery in the second degree (threecounts), burglary in the second degree (two counts) and assault in the second degree (twocounts).
Defendant pleaded guilty to an indictment charging him with various counts of burglary,robbery and assault relating to his involvement in two separate incidents in which two differentresidences were broken into, items were stolen and, during one incident, there was an assault ofthe occupants of the residence. As part of the plea agreement, defendant waived his right toappeal. Supreme Court sentenced defendant in accordance with the plea agreement to anaggregate prison term of 12½ years, to be followed by five years of postrelease supervision.Defendant now appeals and we affirm.
Defendant's claims regarding deficiencies in the grand jury proceedings are precluded fromour review by defendant's knowing, intelligent and voluntary guilty plea, which included anexplicit waiver of his right to appeal (seePeople v Simmons, 27 AD3d 786, 787 [2006], lv denied 7 NY3d 763 [2006];People v Robertson, 279 AD2d 711, 712 [2001], lv denied 96 NY2d 805 [2001]).Similarly, inasmuch as defendant's claim of ineffective assistance of counsel pertains to counsel'srepresentation at a pre-plea suppression hearing and does not impact on the voluntariness of hissubsequent plea, it does not survive the waiver of appeal (see People v [*2]Gentry, 73 AD3d1383, 1384 [2010]) and, is, in any event, unpreserved for our review (see People v Jenks, 69 AD3d1120, 1121 [2010], lv denied 14 NY3d 841 [2010]).
While defendant's challenge to the voluntariness of his plea as it relates to Supreme Court'sfailure to render a determination on his motion to suppress survives his appeal waiver, the issueis unpreserved as defendant neither moved to withdraw his plea nor to vacate the judgment ofconviction (see People v Phelan, 77AD3d 987, 987 [2010]; People vCampbell, 67 AD3d 1125, 1125 [2009], lv denied 14 NY3d 770 [2010]).Moreover, by pleading guilty before obtaining a final order determining his motion to suppress,defendant forfeited his right to appellate review of the undetermined suppression issues(see CPL 710.70 [2]; People v Fernandez, 67 NY2d 686, 688 [1986]; People v Adams, 31 AD3d 1063,1064-1065 [2006], lv denied 7 NY3d 845 [2006]; People v Williams, 6 AD3d 746, 747 [2004], lv denied 3NY3d 650 [2004]; People v Vansickle, 301 AD2d 963, 964 [2003]). Additionally, as partof his plea, defendant expressly withdrew all pending motions and specifically waived his rightto a suppression hearing.
Cardona, P.J., Mercure, Malone Jr. and Garry, JJ., concur. Ordered that the judgment isaffirmed.