| People v Colon |
| 2012 NY Slip Op 08354 [101 AD3d 1161] |
| December 6, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v John Colon,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered June 10, 2010, convicting defendant upon his plea of guilty of the crime of criminal saleof a controlled substance in the third degree.
Defendant was charged with criminal sale of a controlled substance in the third degree afterselling crack cocaine to a confidential informant. When crack cocaine was found in hisunderwear as the result of a strip search conducted after his arrest, he was also charged with twocounts of criminal possession of a controlled substance. In addition, defendant was charged withcriminal sale of a controlled substance in the third degree in a separate indictment in connectionwith another sale of crack cocaine on a different date. After a Mapp hearing, CountyCourt denied defendant's motion to suppress the crack cocaine found on his person, finding thatthe search was incident to a lawful arrest and reasonable under the circumstances. Just beforejury selection, defendant pleaded guilty to one count of criminal sale of a controlled substance inthe third degree in full satisfaction of all charges pending against him. As a condition to thecourt's acceptance of the plea, defendant waived his right to appeal both orally and in writingafter conferring with the court and counsel. Defendant was later sentenced to 7½ years inprison with two years of postrelease supervision.[*2]
Defendant now appeals, challenging the denial of hissuppression motion and claiming that his sentence is harsh and excessive. He does not, however,claim that he did not knowingly, voluntarily and intelligently waive his right to appeal. Instead,he argues that he did not agree that his appeal waiver would include a waiver of his right tochallenge the denial of his suppression motion. The record reveals, however, that defendant'sappeal waiver was not limited in any way and covered "all legal and constitutional grounds,"including "everything that occurred in this prosecution." Accordingly, the valid appeal waiverforecloses his challenge to the denial of his suppression motion (see People v Kemp, 94NY2d 831, 833 [1999]; People vFlake, 95 AD3d 1371, 1372 [2012], lv denied 19 NY3d 973 [2012]; People v Schmidt, 57 AD3d 1104,1104 [2008]), as well as to the duration of his sentence (see People v Irvis, 90 AD3d 1302, 1303 [2011], lv denied19 NY3d 962 [2012]; People vJones, 88 AD3d 1029, 1029 [2011], lv denied 18 NY3d 859 [2011]).
Lahtinen, Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.