| People v Smalls |
| 2015 NY Slip Op 02525 [126 AD3d 1240] |
| March 26, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDante L. Smalls, Appellant. |
Robert N. Gregor, Lake George, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Ann C. Sullivan of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Saratoga County(Scarano, J.), rendered March 5, 2014, convicting defendant upon his plea of guilty ofthe crime of tampering with physical evidence.
Following a traffic stop on March 5, 2013, defendant was arrested and laterarraigned in Town Court on a felony complaint charging him with assault in the seconddegree and other crimes stemming from his conduct during and after the traffic stop.Defendant thereafter appeared with counsel in County Court, waived a preliminaryhearing on the felony complaint, waived indictment and consented to be prosecuted by asuperior court information charging him with tampering with physical evidence, insatisfaction of all charges. Pursuant to a plea agreement, defendant entered a guilty pleato tampering with physical evidence, waived his right to appeal and was sentenced to sixmonths in jail with five years of probation. He appeals.
We are unpersuaded by defendant's contention that his waiver of his statutory right toa preliminary hearing (see CPL 180.10 [2]) was not knowing or intelligent andrendered his guilty plea invalid. Assuming that this claim survives defendant's appealwaiver (see People vBradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]), which he doesnot challenge, it is nonetheless unpreserved for our review inasmuch as he did not makean appropriate postallocution motion to withdraw his guilty plea (see People v Guyette, 121AD3d 1430, 1431 [2014]).
In any event, defendant appeared and, pursuant to the plea terms, acknowledged thatthe "local court waiver" signed by his attorney waived his right to a preliminary hearing.He thereafter entered a guilty plea that was, in all respects, voluntary, knowing andintelligent (see [*2]People v Haffiz, 19 NY3d 883, 884 [2012]),"thereby effectively waiving his right to [a] hearing" (People v Gallagher, 34 AD3d 941, 942 [2006], lvdenied 8 NY3d 880 [2007]; see People v Talback, 32 AD3d 559, 560 [2006], lvdenied 7 NY3d 870 [2006]). Further, a waiver of this statutory right will be upheldwhere, as here, it was knowing, voluntary and intelligent (see People v Vargas,88 NY2d 363, 375-376 [1996]; People v Spotford, 85 NY2d 593, 597-598[1995]; People v Webb, 78 NY2d 335, 339-340 [1991]). Defendant's remainingclaims have been reviewed and found to be lacking in merit.
McCarthy, Rose and Clark, JJ., concur. Ordered that the judgment is affirmed.