| People v Zippo |
| 2016 NY Slip Op 01359 [136 AD3d 1222] |
| February 25, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJohn L. Zippo, Appellant. |
Paul J. Connolly, Delmar, for appellant, and appellant pro se.
Karen Heggen, District Attorney, Ballston Spa (Kristin Foust of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Saratoga County (Scarano,J.), rendered April 24, 2014, convicting defendant upon his plea of guilty of the crime ofattempted robbery in the first degree.
Defendant was charged by indictment with one count each of robbery in the firstdegree, criminal possession of a weapon in the fourth degree and criminal possession ofstolen property in the fifth degree, all of which arose out of a robbery of two victims atknifepoint. Defendant's motion to suppress the evidence was denied, and he then pleadedguilty to a reduced count of attempted robbery in the first degree in satisfaction of theindictment. As a condition of the plea bargain, he agreed to waive his right to appeal,both orally and in writing. Before accepting defendant's waiver, County Court explainedthat his right to appeal was separate and distinct from those rights given up when a pleaof guilty is entered. In addition, defendant acknowledged that his counsel had explainedthe meaning of the appeal waiver to him. Defendant was subsequently sentenced as asecond felony offender in accordance with the plea agreement.
Defendant's sole challenge on appeal concerns County Court's decision denying hismotion to suppress the evidence that led to his arrest. However, his knowing, voluntaryand intelligent waiver of his right to appeal precludes his challenge to the adversesuppression ruling (see People v Kemp, 94 NY2d 831, 833 [1999]; People v Stone, 105 AD3d1094, 1095 [2013]; Peoplev Colon, 101 AD3d 1161, 1161-1162 [2012], lv denied 21 NY3d 1003[2013]). While the better practice is for County Court to advise defendant at the time ofthe plea that his waiver [*2]included the right to appealthe suppression issue (see People v Kemp, 94 NY2d at 833), defendant signed awritten waiver whereby he agreed to waive his right to appeal on several grounds,including "[t]he decision and order of [County] Court on any pre-trial motions made bythe defendant." Thus, defendant's appeal waiver was not qualified or limited in any way.Further, defendant's counsel made it abundantly clear at the time of sentencing thatdefendant understood that his appeal waiver applied to County Court's suppressionruling.
McCarthy, J.P., Garry and Devine, JJ., concur. Ordered that the judgment isaffirmed.