| People v Walton |
| 2012 NY Slip Op 09105 [101 AD3d 1489] |
| December 27, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert D.Walton Jr., Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered September 2, 2011, convicting defendant upon his plea of guilty of the crime ofcriminal sale of a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal sale of acontrolled substance in the third degree and waived his right to appeal. He was sentenced, inaccordance with the plea agreement, as a second felony offender to six years in prison followedby 1½ years of postrelease supervision. He now appeals.
Defendant's waiver of the right to appeal was valid. Although he expressed some uncertaintyregarding the appeal waiver at the inception of the plea colloquy, County Court explained todefendant the nature of the right to appeal and made clear that this right was separate and distinctfrom the rights forfeited by the guilty plea. Defendant confirmed his understanding and declinedfurther opportunity to discuss the waiver with counsel. Moreover, defendant executed a detailedwritten waiver. While such waiver was executed outside of court, he acknowledged his signatureon the waiver and affirmed that he had discussed the waiver with counsel. Thus, we concludethat defendant knowingly, voluntarily and intelligently waived his [*2]right to appeal his conviction and sentence (see People v Tolliver, 92 AD3d1024, 1024 [2012]; People vMcDuffie, 89 AD3d 1154, 1156 [2011], lv denied 19 NY3d 964 [2012]; People v Jean-Francois, 82 AD3d1366, 1366 [2011], lv denied 17 NY3d 797 [2011]).
Defendant's valid appeal waiver precludes his challenge to County Court's denial of hisrequest for a Wade hearing (see People v Kemp, 94 NY2d 831, 833 [1999]; People v Barrier, 7 AD3d 885, 886[2004], lv denied 3 NY3d 670 [2004]; People v McGuffie, 294 AD2d 617, 618[2002], lv denied 98 NY2d 699 [2002]). To the extent that defendant's ineffectiveassistance of counsel claim impacts the voluntariness of his plea and, therefore, survives hiswaiver of appeal, it is unpreserved for our review inasmuch as the record before us fails toindicate that he moved to withdraw his guilty plea or vacate the judgment of conviction (see People v Holmes, 75 AD3d834, 835 [2010], lv denied 15 NY3d 921 [2010]; People v Garland, 69 AD3d 1122, 1123 [2010], lv denied14 NY3d 887 [2010]). Were we to reach the issue, we would find that defendant was providedwith meaningful representation (seePeople v Flake, 95 AD3d 1371, 1372 [2012], lv denied 19 NY3d 973, 974[2012]; People v Shurock, 83 AD3d1342, 1344 [2011]; People vLee, 51 AD3d 1217, 1218 [2008]).
Defendant's claim that he was improperly sentenced as a second felony offender is likewiseunpreserved, as he failed to object at sentencing (see People v Washington, 89 AD3d 1140, 1142 [2011], lvdenied 18 NY3d 963 [2012]; Peoplev Glynn, 72 AD3d 1351, 1351-1352 [2010], lv denied 15 NY3d 773 [2010]). Inany event, defendant pleaded guilty with the understanding that he would be sentenced as asecond felony offender, admitted that he was the person previously convicted of the felony setforth in the predicate felony statement, and had ample opportunity to controvert any aspect of theprior conviction. Under the circumstances, we find substantial compliance with CPL 400.21 (3)(see People v Smith, 89 AD3d1328, 1328-1329 [2011]; People v Washington, 89 AD3d at 1142; People v Califano, 84 AD3d 1504,1506-1507 [2011], lv denied 17 NY3d 805 [2011]).
Finally, defendant's assertion that his sentence should be reduced in the interest of justice isbarred by his valid appeal waiver (seePeople v White, 96 AD3d 1299, 1300 [2012], lv denied 19 NY3d 1029 [2012];People v Board, 75 AD3d 833,834 [2010]).
Spain, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.