| People v Easter |
| 2014 NY Slip Op 08065 [122 AD3d 1073] |
| November 20, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vBernard Easter, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney (Steven Sharp of counsel), for respondent.
Rose, J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedDecember 12, 2012 in Albany County, convicting defendant upon his plea of guilty ofthe crime of course of sexual conduct against a child in the first degree.
Defendant pleaded guilty to the class B felony of course of sexual conduct against achild in the first degree in satisfaction of a multicount indictment charging him with sexcrimes against three victims, each under the age of 13. Pursuant to the plea agreement,defendant waived his right to appeal and Supreme Court agreed to impose a prisonsentence of 11 years followed by 10 years of postrelease supervision. The court thensentenced him to the agreed-upon term and he now appeals.
Defendant's challenge to the voluntariness of his plea is not preserved for our reviewbecause the record does not reflect that he moved to withdraw the plea (see People v Watson, 110AD3d 1110, 1110 [2013], lv denied 22 NY3d 1160 [2014]; People v Musser, 106 AD3d1334, 1335 [2013], lv denied 22 NY3d 997 [2013]; People v Williams, 101 AD3d1174, 1174 [2012]). Even assuming that defendant's comment—made as hewas about to be sworn in prior to entering the plea—that "I can't do this" triggersthe narrow exception to the preservation requirement (see People v Lopez, 71NY2d 662, 666 [1988]), the record reflects that defendant thereafter consulted withcounsel, Supreme Court thoroughly inquired as to whether he was being coerced and,based on his unequivocal answers, was satisfied that he was freely and voluntarilyentering the plea (see People vHoward, 119 AD3d 1090, 1090 [2014], lv denied 24 NY3d 961 [2014];People v Goodell, 104AD3d 1026, 1026-1027 [2013], lv denied 22 NY3d 1138 [2014]).
To the extent that defendant challenges the waiver of appeal, we find it valid.Supreme Court advised him of the rights he was forfeiting, clearly distinguished thoserights from the rights given up as part of his plea and defendant signed a written waiverin open court acknowledging that he had consulted with counsel (see People vMusser, 106 AD3d at 1335; People v Benson, 100 AD3d 1108, 1108 [2012]; People v Moreno, 86 AD3d863, 864 [2011], lv denied 17 NY3d 954 [2011]). Inasmuch as the appealwaiver is valid, it precludes defendant's challenge to Supreme Court's denial of hissuppression motion, as well as his claim that his sentence was harsh and excessive(see People v Watson, 110 AD3d at 1111; People v Musser, 106 AD3d at1335; People v Moreno, 86 AD3d at 864). Defendant's remaining argumentshave been considered and found to be unavailing.
Peters, P.J., Stein, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.