| People v Johnson |
| 2014 NY Slip Op 01641 [115 AD3d 1066] |
| March 13, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vTerrence Johnson, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedAugust 29, 2012 in Albany County, convicting defendant upon his plea of guilty of thecrime of attempted criminal possession of a controlled substance in the third degree.
Defendant pleaded guilty to attempted criminal possession of a controlled substancein the third degree and waived his right to appeal. Pursuant to the plea agreement, he wassentenced as a second felony offender to a 5½-year prison term followed by twoyears of postrelease supervision. Defendant appeals, and we affirm.
Following entry of his plea and during the course of his presentencing interview,defendant made remarks to the probation officer denying that he had been aware ofpossessing the drugs underlying his conviction. Thereafter, at sentencing, Supreme Courtspecifically questioned defendant regarding these statements, asking repeatedly whetherhe wished to either make any statement to the court or withdraw his guilty plea, and heconsistently answered "no." As there is no indication in the record that defendant movedat any time thereafter to withdraw his plea or to vacate the judgment of conviction, hisclaim that the court erred in proceeding to sentence defendant in accord with his pleaagreement is not preserved for our review (see People v Colon, 106 AD3d 1367, 1368 [2013]). Nordoes the record reveal that the narrow exception to the preservation rule is applicable (see People v Ferro, 101 AD3d1243, 1244 [2012], lv denied 20 NY3d 1098 [2013]).
Supreme Court took the necessary precautionary steps throughout the course of theproceedings to ensure that defendant's guilty plea was knowing and voluntary. The courtthoroughly explained the rights that defendant was forfeiting and the consequences of theplea, making a series of pertinent inquiries. The record thus fully demonstrates thatdefendant, who was represented by counsel, voluntarily entered the plea with knowledgeand understanding (see People vYoungblood, 107 AD3d 1159, 1160 [2013], lv denied 21 NY3d 1078[2013]; People v Ramires, 264 AD2d 948, 949 [1999], lv denied 94NY2d 906 [2000]).
Supreme Court further advised defendant as to the effect of the waiver of appeal andinquired as to whether he had questions with respect to that separate issue for either hiscounsel or the court. Defendant thereafter waived his right to appeal his conviction andsentence both orally on the record and by a written waiver executed before the court. Wefind this record adequate to demonstrate his voluntary and knowledgeable waiver (see People v Johnson, 106AD3d 1331, 1332 [2013], lv denied 21 NY3d 1016 [2013]; People v Foote, 102 AD3d1056, 1057 [2013], lv denied 20 NY3d 1098 [2013]; People v Lopez, 97 AD3d853, 853 [2012], lv denied 19 NY3d 1027 [2012]). As Supreme Courtadvised, defendant's valid waiver of appeal forecloses the evidentiary challenges he nowseeks to raise (see People vStone, 105 AD3d 1094, 1094 [2013]; People v Frierson, 21 AD3d 1211, 1212 [2005], lvdenied 6 NY3d 753 [2005]).
Peters, P.J., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.