| People v Simmons |
| 2015 NY Slip Op 04878 [129 AD3d 1200] |
| June 11, 2015 |
| Appellate Division, Third Department |
[*1](June 11, 2015)
| The People of the State of New York, Respondent, vMichael J. Simmons, Appellant. |
Albert F. Lawrence, Greenfield Center, for appellant.
Nicole M. Duve, Special Prosecutor, Ogdensburg, for respondent.
Rose, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered January 9, 2012, convicting defendant upon his plea of guilty ofthe crime of attempted murder in the second degree.
Defendant was charged in a nine-count indictment with attempted murder in the firstand second degrees, rape in the first degree, unlawful imprisonment in the first degreeand assault in the first degree (four counts) and second degree after he brutally attackedhis wife. After a suppression hearing, County Court determined that defendant'sstatements to law enforcement following the attack were admissible. Defendantultimately pleaded guilty to attempted murder in the second degree in full satisfaction ofthe indictment and waived his right to appeal, both orally and in writing. County Courtthen sentenced defendant, in accordance with the plea agreement, to a prison term of 15years, to be followed by five years of postrelease supervision. He now appeals.
Initially, defendant argues that County Court's suppression ruling was erroneous, andthat such an argument may be made notwithstanding his waiver of appeal. We cannotagree. Defendant's general waiver of appeal from "any aspect of this matter" precludeshis challenge to the suppression ruling (see People v Kemp, 94 NY2d 831, 833[1999]; People v Stone, 105AD3d 1094, 1095 [2013]; People v Colon, 101 AD3d 1161, 1161-1162 [2012], lvdenied 21 [*2]NY3d 1003 [2013]).[FN*] To the extent thatdefendant's claim that he was denied the effective assistance of counsel survives hisappeal waiver, he failed to preserve it with an appropriate postallocution motion (see People v Smith, 121 AD3d1131, 1132 [2014], lv denied 24 NY3d 1123 [2015]; People v Boone, 101 AD3d1358, 1359 [2012], lv denied 20 NY3d 1096 [2013]). Finally, defendant'svalid appeal waiver also precludes his challenge to the severity of the sentence (see People v Dale, 115 AD3d1002, 1007 [2014]; People v Colon, 101 AD3d at 1162; People v Griffin, 100 AD3d1153, 1154 [2012], lv denied 20 NY3d 1011 [2013]).
Peters, P.J., Lahtinen and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although not raised bydefendant, we agree with the People that his appeal waiver was valid (see People v Lopez, 6 NY3d248, 256 [2006]; People vBurritt, 127 AD3d 1433, 1434 [2015]; People v Balbuena, 123 AD3d 1384, 1385 [2014]).