| People v Turner |
| 2015 NY Slip Op 02516 [126 AD3d 1228] |
| March 26, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vLashon Turner, Also Known as Shotgun, Also Known as Shock,Appellant. |
Erin C. Morigerato, Albany, for appellant.
Eric T. Schneiderman, Attorney General, New York City (Nikki Kowalski ofcounsel), for respondent.
Rose, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered August8, 2012 in Albany County, convicting defendant upon his plea of the crime of attemptedcriminal possession of a controlled substance in the third degree.
Defendant was charged in a sealed indictment with one count each of attemptedcriminal possession of a controlled substance in the third degree and conspiracy in thesecond degree after allegedly acting in concert with numerous codefendants as part of alarge-scale cocaine distribution network. During trial, he pleaded guilty to attemptedcriminal possession of a controlled substance in the third degree in full satisfaction of thecharges against him, and waived his right to appeal. Supreme Court thereafter sentencedhim, as a second felony offender, to 4
We affirm. Initially, we reject defendant's challenge to the validity of his waiver ofthe right to appeal. Supreme Court adequately explained the nature of the right anddistinguished it from those rights that are automatically forfeited upon a plea of guilty.Moreover, defendant signed a written waiver in open court after conferring with counselthat further clarified the scope of the right, and the court confirmed that he understoodthe waiver. Under these circumstances, we conclude that defendant knowingly,intelligently and voluntarily waived his right to appeal [*2]his conviction and sentence, thereby precluding hischallenge to the severity of his sentence (see People v Bradshaw, 18 NY3d 257, 264-267 [2011]; People v Van Clief, 122 AD3d1062, 1062-1063 [2014], lv denied 24 NY3d 1221 [2015]).
Turning to the remaining argument, defendant's assertion that he received ineffectiveassistance of counsel impacts the voluntariness of his plea and, therefore, survives hiswaiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]).Nevertheless, his assertion is unpreserved due to his failure to raise his challenge in theappropriate postallocution motion (see People v Guyette, 121 AD3d 1430, 1432 [2014]). Inany event, defendant's claim that counsel was ineffective for failing to object to theindictment as jurisdictionally defective must fail inasmuch as counsel had no duty tomake a patently meritless motion (see People v Caban, 5 NY3d 143, 152 [2005]; People v Nguyen, 90 AD3d1330, 1332-1333 [2011], lv denied 18 NY3d 960 [2012]).
Peters, P.J., McCarthy and Clark, JJ., concur. Ordered that the judgment isaffirmed.