| People v Ortiz |
| 2015 NY Slip Op 03200 [127 AD3d 1416] |
| April 16, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vDavid Ortiz, Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Clark, 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 weapon in the second degree.
In December 2011, defendant was a passenger in a vehicle stopped by the police fora traffic infraction. During a search of the vehicle, a state trooper discovered a gun andammunition. Indicted on charges of criminal possession of a weapon in the seconddegree and criminal possession of stolen property in the fourth degree, defendant movedto suppress the evidence, a motion that Supreme Court denied following a hearing.Subsequently, in exchange for a promised determinate prison sentence of seven yearsfollowed by five years of postrelease supervision, defendant pleaded guilty to attemptedcriminal possession of a weapon in the second degree and waived his right to appeal onthe record, both verbally and in writing. Defendant now appeals.
Initially, we reject defendant's claim that his appeal waiver was invalid. During theplea colloquy, Supreme Court adequately explained the nature of the rights thatdefendant was waiving and that the right to appeal is separate and distinct from the rightsautomatically forfeited upon a plea of guilty (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d248, 256-257 [2006]). Defendant orally confirmed that he understood the rights thathe was relinquishing and that those rights were separate and distinct from the rightsforfeited as a [*2]result of his guilty plea (cf. People vBradshaw, 18 NY3d at 267). Defendant also signed a written waiver of appeal inopen court that both mirrored Supreme Court's colloquy and indicated that defendant hadbeen given sufficient time to discuss the waiver with counsel. Therefore, contrary todefendant's contentions on appeal, the court "carefully explained the appeal waiver anddistinguished it from the other rights that defendant was forgoing as a consequence of hisguilty plea, established that defense counsel had discussed it with him . . .and did not mislead him as to the . . . scope of the appeal waiver" (People v Wolz, 112 AD3d1150, 1152 [2013], lv denied 23 NY3d 1026 [2014]; see People v Ramos, 7 NY3d737, 738 [2006]; People v Lopez, 6 NY3d at 257).
"Inasmuch as the appeal waiver is valid, it precludes defendant's challenge toSupreme Court's denial of his suppression motion, as well as his claim that his sentencewas harsh and excessive" (People v Easter, 122 AD3d 1073, 1074 [2014], lvdenied 24 NY3d 1219 [2015]; see People v Grigger, 111 AD3d 974, 975 [2013], lvdenied 23 NY3d 1037 [2014]; People v Stone, 105 AD3d 1094, 1094-1095 [2013]).Turning to defendant's claim that survives his appeal waiver, his argument that his pleawas involuntary due to the ineffective assistance of counsel is unpreserved for our reviewbecause he failed to move to withdraw his plea, and the narrow exception to thepreservation requirement is inapplicable (see People v Watson, 115 AD3d 1016, 1017 [2014], lvdenied 24 NY3d 965 [2014]; People v Smith, 112 AD3d 1232, 1232-1233 [2013], lvdenied 22 NY3d 1203 [2014]).
McCarthy, J.P., Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.