| People v Vellon |
| 2015 NY Slip Op 04524 [128 AD3d 1274] |
| May 28, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vSantos Vellon Jr., Appellant. |
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Clark, J. Appeal from a judgment of the Supreme Court (Lamont, J.), renderedOctober 19, 2012 in Albany County, convicting defendant upon his plea of guilty of thecrime of criminal sale of a controlled substance in the third degree.
Defendant pleaded guilty to criminal sale of a controlled substance in the thirddegree in satisfaction of a two-count indictment and waived his right to appeal. As partof his negotiated plea, defendant signed a stipulation forfeiting $337,720 that wasallegedly seized in relation to the crimes charged. Sentenced pursuant to his pleaagreement to a prison term of eight years with two years of postrelease supervision,defendant now appeals.
Defendant initially contends that his plea was not voluntary, as he was rushed intoagreeing to its terms without fully understanding the rights that he was giving up or theultimate consequences of the plea. This contention is unpreserved for our review, givendefendant's failure to make an appropriate postallocution motion (see People v Royce, 122 AD3d1008, 1009 [2014]; Peoplev Tole, 119 AD3d 982, 983 [2014]). In any event, the transcript of the pleacolloquy establishes that defendant knowingly, voluntarily and intelligently pleadedguilty, after being provided with sufficient time to discuss the plea with his counsel andto consider its implications (seePeople v Toback, 125 AD3d 1060, 1061 [2015], lv denied 25 NY3d 993 [Apr. 9, 2015]; People vSpellicy, 123 AD3d 1228, 1229-1230 [2014], lv denied 25 NY3d 992 [Apr. 23, 2015]). Defendant further contends that he did not understand theconsequences of his appeal waiver and it is therefore invalid. While defendant was notrequired to preserve his challenge to the voluntariness of his appeal waiver (see People v Crump, 107AD3d 1046, 1046-[*2]1047 [2013], lvdenied 21 NY3d 1014 [2013]), we conclude that defendant likewise knowingly,voluntarily and intelligently waived his right to appeal, and that he understood theconsequences of the waiver (seePeople v Kormos, 126 AD3d 1039, 1039 [2015]; People v Sibounhome, 125AD3d 1059, 1059-1060 [2015]).
We also find without merit defendant's argument that the funds forfeited as part ofhis guilty plea should be returned to him due to the People's failure to follow theprocedure required by Penal Law § 480.10. As an initial matter, defendant'schallenge to the forfeiture is waived both by his written forfeiture stipulation and hisvalid appeal waiver (see Peoplev Carbone, 101 AD3d 1232, 1233 [2012]; People v Sczepankowski, 293AD2d 212, 214-215 [2002], lv denied 99 NY2d 564 [2002]; see also People v Abruzzese,30 AD3d 219, 220 [2006], lv denied 7 NY3d 784 [2006]). Furthermore,defendant incorrectly argues that this is a criminal forfeiture pursuant to Penal Law§ 480.10, although he was clearly advised during his plea colloquy of thecivil nature of the forfeiture and he stipulated to a release of the subject funds pursuant toCPLR article 13-A as a negotiated aspect of his plea agreement (see CPL 220.50[6]; People v Carmichael,123 AD3d 1053, 1053 [2014]). Finally, "[d]efendant's valid appeal waiver precludeshis argument[ ] that the agreed-upon sentence was harsh and excessive" (People vToback, 125 AD3d at 1061; see People v Balbuena, 123 AD3d 1384, 1386 [2014]).
Lahtinen, J.P., Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.