| People v Cooper |
| 2015 NY Slip Op 01835 [126 AD3d 1046] |
| March 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vTyrone D. Cooper, Appellant. |
John P.M. Wappett, Public Defender, Lake George (Nellie R. Halloran of counsel),for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport ofcounsel), for respondent.
Garry, J. Appeal from a judgment of the County Court of Warren County (Hall Jr.,J.), rendered October 10, 2012, convicting defendant upon his plea of guilty of the crimeof criminal possession of a controlled substance in the fourth degree.
Defendant was arrested and charged with crimes after police discovered cocaine onhis person. In full satisfaction of these charges, he pleaded guilty to criminal possessionof a controlled substance in the fourth degree. As part of the plea agreement, he waivedhis right to appeal. Defendant was thereafter sentenced to the agreed-upon prison term oftwo years followed by two years of postrelease supervision, together with an orderdirecting his enrollment in a shock incarceration program.
Defendant appeals.
First, defendant contends that the evidence against him should have been suppressedas the fruit of an illegal search. However, such contention does not survive a knowingand intelligent waiver of the right to appeal (see People v Santalucia, 19 AD3d 806, 807 [2005], lvdenied 5 NY3d 856 [2005]; People v Hodge, 4 AD3d 676, 677 [2004], lvdenied 2 NY3d 800 [2004]). Defendant does not claim that his waiver was invalid,and the record reveals that County Court explained the nature and consequences of thewaiver in detail, distinguished this aspect of defendant's plea agreement from the otherrights forfeited by his guilty plea, and ascertained that defendant understood theseexplanations (see People vLopez, 6 NY3d 248, 256 [2006]; People v Smith, 121 AD3d 1131, 1131-1132 [2014], lvdenied 24 NY3d 1123 [[*2]2015]). Accordingly, thewaiver of the right to appeal was valid, and defendant's challenge to the legality of hisarrest is foreclosed (see People v Hodge, 4 AD3d at 677).
Defendant also contends that he was deprived of the effective assistance of counselby his attorney's failure to request a suppression hearing. To the extent that this claimimplicates the voluntariness of his plea and thus survives his waiver of the right to appeal(see People v Wicks, 83AD3d 1223, 1225 [2011], lv denied 17 NY3d 810 [2011]), it is neverthelessunpreserved for appellate review, as the record does not reveal that defendant made anappropriate postallocution motion (see People v Smith, 123 AD3d 1375, 1376 [2014]; People v White, 122 AD3d1005, 1006 [2014]; Peoplev Moses, 110 AD3d 1118, 1118-1119 [2013]). In any event, the failure torequest a suppression hearing, standing alone, does not establish that defense counselprovided ineffective assistance (see People v Gentry, 73 AD3d 1383, 1384 [2010]; People v Jackson, 67 AD3d1067, 1068 [2009], lv denied 14 NY3d 801 [2010]). Here, nothing else inthe record casts doubt on the effectiveness of defense counsel, who, among other things,secured an advantageous plea bargain for defendant. Defendant affirmed during the pleacolloquy that he was satisfied with his counsel's representation, and if the issue had beenpreserved, we would have concluded that he received meaningful representation (see People v Aitken, 101AD3d 1383, 1384 [2012], lv denied 21 NY3d 1040 [2013]; People v Flake, 95 AD3d1371, 1372 [2012], lv denied 19 NY3d 973 [2012]; People v Gentry,73 AD3d at 1384).
Peters, P.J., McCarthy and Rose, JJ., concur. Ordered that the judgment isaffirmed.