| People v Burritt |
| 2015 NY Slip Op 03206 [127 AD3d 1433] |
| April 16, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vBrandon Burritt, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Devine, J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedNovember 25, 2013 in Albany County, convicting defendant upon his plea of guilty ofthe crime of manslaughter in the first degree.
Defendant was charged in an indictment with murder in the second degree stemmingfrom an incident in which he allegedly stabbed his roommate to death during analtercation that occurred in their apartment. After initially rejecting the People's pleaoffer, defendant subsequently agreed to plead guilty to a reduced charge of manslaughterin the first degree and waived his right to appeal. Supreme Court sentenced defendant tothe agreed-upon term of 18 years in prison followed by five years of postreleasesupervision. Defendant appeals.
We affirm. Defendant claims that his guilty plea is invalid because Supreme Courtfailed to sufficiently inquire about the possibility that his usage of pain medications mayhave impacted his ability to comprehend the plea proceedings or apprise him that he waswaiving possible defenses to the charge against him. Although defendant's assertion thathis plea was not knowing, voluntary or intelligent is not precluded by his waiver ofappeal (see People vGuyette, 121 AD3d 1430, 1431 [2014]; People v Osgood, 111 AD3d 1029, 1030 [2013], lvdenied 22 NY3d 1089 [2014]), such challenge was not preserved for our review asdefendant failed to move to withdraw his guilty plea (see People v Velazquez, 125 AD3d 1063, 1064 [2015]; People v Johnson, 115 AD3d1066, 1066 [2014]). "Nor did [defendant] make any statements during the pleacolloquy that negated an essential element of the crime or cast doubt upon [his] guilt soas to invoke the exception to the preservation requirement" (People v Vandemark, 117AD3d 1339, 1340 [2014], lv denied 24 NY3d 965 [2014] [citation omitted];see People v Griffin, 117 AD3d [*2]1339, 1339[2014]; People v Ferro, 101AD3d 1243, 1244 [2012], lv denied 20 NY3d 1098 [2013]).
Defendant further asserts that Supreme Court erred in denying his request for aDunaway hearing, an assertion that is precluded by the waiver of the right toappeal (see People v Easter,122 AD3d 1073, 1074 [2014], lv denied 24 NY3d 1219 [2015]; People v Anderson, 63 AD3d1191, 1193 [2009], lv denied 13 NY3d 794 [2009]). Despite defendant'sclaim to the contrary, inasmuch as Supreme Court fully distinguished the waiver of theright to appeal from those rights that defendant would relinquish as part of the plea dealand defendant executed a written waiver of appeal before the court, the waiver of appealis valid (see People vLopez, 6 NY3d 248, 256 [2006]; People v Musser, 106 AD3d 1334, 1335 [2013], lvdenied 22 NY3d 997 [2013]). Finally, the valid waiver of appeal foreclosesdefendant's claim that the agreed-upon prison sentence is harsh and excessive (see People v Dozier, 115AD3d 1001, 1002 [2014], lv denied 24 NY3d 1083 [2014]; People v Dyckman, 114 AD3d994, 995 [2014], lv denied 23 NY3d 1036 [2014]).
McCarthy, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.