| People v Lewis |
| 2012 NY Slip Op 03679 [95 AD3d 1442] |
| May 10, 2012 |
| Appellate Division, Third Department |
| 2—The People of the State of New York, Respondent, vAdam Lewis, 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 (Giardino,J.), rendered July 24, 2009, convicting defendant upon his plea of guilty of the crimes ofattempted murder in the second degree, assault in the first degree, burglary in the first degree(two counts), aggravated criminal contempt (two counts), attempted burglary in the seconddegree, endangering the welfare of a child (three counts), criminal mischief in the fourth degree(five counts), aggravated harassment in the second degree (three counts) and harassment in thesecond degree.
In December 2008, defendant was charged by indictment with, among other things,attempted murder in the second degree, assault in the first degree and two counts of burglary inthe first degree, all stemming from six separate incidents in which it was alleged that defendant,over a period time, had assaulted and harassed the victim. Ultimately, defendant was alleged tohave forced his way into the victim's home, where he stabbed her in the back and abdomen with asharp object.[FN1]After defendant was arrested, he made numerous statements to the police [*2]admitting his prior contact with the victim and his forcible entryinto her home where he attacked her with a piece of glass.[FN2]Defendant moved to suppress these statements but, after a hearing, defendant's motion wasdenied. Thereafter, defendant pleaded guilty to the entire indictment, waived his right to appealand was sentenced to an aggregate term of 14 years in prison, plus five years of postreleasesupervision.[FN3]Defendant now appeals.
Initially, defendant claims that the waiver of his right to appeal was unenforceable because hereceived no consideration in return for executing it and because it required that he give up rightsthat could not be legally waived. We note that defendant, in addition to executing a writtenwaiver of appeal, confirmed in open court with counsel present that he fully understood he waswaiving his right to appeal and stated that "from this point forward, I fully accept the conditionsset forth by the court on this case and I have no right to appeal any decision that the judgemakes." In addition, defendant acknowledged in his written waiver that he understood that hisright to appeal was separate and distinct from his guilty plea and that he could not appeal, amongother things, rulings made on his motion to suppress or the sentence that would be imposed as aresult of his guilty plea. It does not follow that because defendant agreed to waive other rights,his appeal waiver was unenforceable or was not knowingly, intelligently and voluntarily entered.Also, County Court agreed, in return for his guilty plea to the entire indictment, that defendant'ssentence would be between a range of 12 to 15 years (compare People v Coles, 13 AD3d 665-666 [2004]). Given thisrecord, we conclude that defendant knowingly and intelligently waived his right to appeal andthat the waiver was fully enforceable (see People v Bradshaw, 18 NY3d 257, 264-266 [2011]; People v Lindsey, 93 AD3d 1040[2012]). As for County Court's statement during the plea allocution that defendant could "alwaysappeal if [the court] lied to you or tried to mislead you," in our view, this did not have any impacton the integrity of defendant's guilty plea or his wavier of the right to appeal.
Defendant's valid waiver of his right to appeal precludes him from challenging the decisionsmade on his motion to suppress (seePeople v Spruill, 90 AD3d 1242, 1243 [2011]; People v Ballard, 88 AD3d 1025, 1026 [2011]), as well as his claimthat his sentence was harsh and excessive (see People v Cano, 93 AD3d 994 [2012]; People v Vasavada, 93 AD3d 893,894 [2012]). In addition, defendant may not challenge the voluntariness of his guilty plea becausethere is no evidence on this record that he has moved to withdraw that plea or vacate thejudgment of conviction (see People vSherman, 91 AD3d 982, 983 [2012]; People v Martinez-Velazquez, 89 AD3d 1318, 1319 [2011]), andthe narrow exception to the preservation requirement is not implicated here (see People v Richardson, 83 AD3d1290, 1291 [2011], lv denied 17 NY3d 821 [2011]). In any event, were we to reachthe issue we would find that defendant knowingly and voluntarily entered his guilty plea and wasfully aware of the commitments that County Court had made regarding his sentence.
Rose, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: At the time of this attack, ordersof protection had been issued requiring defendant to stay away from the victim and her children.
Footnote 2: At the victim's home, the policerecovered various items left by defendant, including a can of gasoline and matches.
Footnote 3: Defendant was also directed tomake restitution and orders of protection were issued requiring that he stay away from the victimand her children.