| People v Clemons |
| 2012 NY Slip Op 04422 [96 AD3d 1086] |
| June 7, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v David EdwardClemons, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered February 22, 2010, convicting defendant upon his plea of guilty of the crime of assaultin the second degree.
In October 2007, defendant stabbed another individual with a knife in the City ofOgdensburg, St. Lawrence County. He was interviewed by police several times thereafter,including two occasions in October 2008. During the second October 2008 interview, heconfessed to the stabbing. Defendant was indicted for assault in the first degree, and gave awritten statement based upon a plea offer. County Court rejected the proposed plea agreement,and the parties stipulated to suppress the written statement. The court denied defendant's motionto suppress the October 2008 statements following a hearing. Defendant thereafter pleaded guiltyto assault in the second degree and was sentenced as a persistent violent felony offender to aprison term of 12 years to life. Defendant appeals.
We reject defendant's contention that his oral and written waiver of the right to appeal wasrendered invalid by County Court's failure to recite, as provided in the written waiver, that itwould not accept the plea unless defendant waived his right to appeal. Counsel advised defendantbefore entering the plea that waiver of the right to appeal would be required as part of theagreement and the court then informed defendant that an appeal waiver was one of the terms ofthe plea, obtained his acknowledgment that he had heard and understood all of the terms, and[*2]separately explained the nature of the appeal rights beingwaived. After defendant orally confirmed that he understood these rights and was waiving themvoluntarily, he executed the written waiver in open court, in the presence of his counsel. Underthese circumstances, as we have previously held on several occasions, the language at issue in thewritten waiver did not alter the knowing, voluntary and intelligent nature of defendant's appealwaiver (see People v Sherman, 91AD3d 982, 982-983 [2012]; Peoplev Planty, 85 AD3d 1317, 1317 [2011], lv denied 17 NY3d 820 [2011]; People v White, 84 AD3d 1641,1641 [2011], lv denied 18 NY3d 887 [2012]).
The valid appeal waiver precludes his challenge to the denial of his motion to suppress theOctober 2008 statements (see People vRobinson, 86 AD3d 719, 719 [2011]; People v Schmidt, 57 AD3d 1104 [2008]). Defendant's challenge tothe voluntariness of the plea and the factual sufficiency of the allocution is unpreserved as therecord indicates that he failed to move to withdraw the plea or vacate the judgment of conviction,and the narrow exception to the preservation requirement does not apply, as nothing in theallocution cast doubt on his guilt or negated an essential element of the crime (see People v Tolliver, 92 AD3d1024 [2012]; People v Norton,88 AD3d 1027, 1028 [2011]).
Mercure, J.P., Rose, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.