| People v Payne |
| 2017 NY Slip Op 01598 [148 AD3d 1226] |
| March 2, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v BurtonPayne, Appellant. |
Keeley A. Maloney, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Devine, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered January16, 2015 in Albany County, convicting defendant upon his plea of guilty of the crimes ofcriminal possession of a controlled substance in the third degree (two counts), criminally usingdrug paraphernalia in the second degree, unlawful possession of marihuana and criminalpossession of a controlled substance in the seventh degree.
Investigators placed defendant's apartment under surveillance after receiving a tip that drugsales had been occurring there. During the course of the stakeout, officers observed a womanenter and quickly exit the apartment. A traffic stop of the woman's vehicle was effected andcocaine was recovered. She pointed to defendant as the supplier of that cocaine and, based uponher supporting deposition and the observations of investigators, a search warrant for defendant'sapartment was issued and executed. Cocaine and marihuana were recovered from the apartmentand defendant, after having been taken into custody and Mirandized, made incriminatingstatements to investigators.
An indictment was thereafter handed up that, as amended, charged defendant with two countsof criminal possession of a controlled substance in the third degree, criminally using drugparaphernalia in the second degree, unlawful possession of marihuana and criminal possession ofa controlled substance in the seventh degree. Following a hearing, Supreme Court declined tosuppress physical evidence recovered during the search of defendant's apartment or hisstatements to police. Defendant proceeded to trial but, shortly after the People rested their case,[*2]pleaded guilty to the indictment and waived his right toappeal from the conviction and sentence. Supreme Court promised to sentence defendant, asecond felony offender, to an aggregate prison term of six years to be followed by postreleasesupervision of three years. The agreed-upon sentence was imposed, and defendant nowappeals.
Defendant does not challenge the validity of his waiver of appeal and, in any case, our reviewof the plea colloquy and the written waiver he executed after conferring with counsel confirmsthat it was knowingly, intelligently and voluntarily entered into (see People v Sanders, 25 NY3d337, 341-342 [2015]; People vLopez, 6 NY3d 248, 257 [2006]). Contrary to defendant's contention, the appeal waiverencompassed "any and all matters that took place during the entire pendency of this action" andprecludes his arguments regarding the denial of his suppression motion (see People vSanders, 25 NY3d at 342; People v Kemp, 94 NY2d 831, 833 [1999]; People v Simmons, 129 AD3d1200, 1201 [2015], lv denied 27 NY3d 1075 [2016]).
Defendant's remaining claim that he received ineffective assistance of counsel, to the extentthat it survives his appeal waiver, is unpreserved for our review given his failure to make anappropriate postallocution motion (see People v Simmons, 129 AD3d at 1201; People v Smith, 121 AD3d 1131,1132 [2014], lv denied 24 NY3d 1123 [2015]). He does not claim, and the record doesnot show, that this case falls within the narrow exception to the preservation rule (see People v Williams, 27 NY3d212, 214 [2016]; People v Lopez, 71 NY2d 662, 666 [1988]).
As a final matter, a discrepancy exists between certain forms and the sentencing minutes withrespect to count four of the indictment which, as amended at trial, charged defendant withunlawful possession of marihuana. Defendant pleaded guilty to the amended count and wasappropriately sentenced by Supreme Court, but both the certificate of conviction and uniformsentence and commitment form refer to a conviction upon the original count of criminalpossession of marihuana in the fifth degree. The judgment need not be disturbed under thesecircumstances, but remittal is required so that Supreme Court may correct the error on both forms(see People v Minaya, 54 NY2d 360, 364-365 [1981], cert denied 455 US 1024[1982]; People v Gathers, 106AD3d 1333, 1334 [2013], lv denied 21 NY3d 1073 [2013]).
Garry, J.P., Rose, Clark and Mulvey, JJ., concur. Ordered that the judgment is affirmed, andmatter remitted for entry of an amended certificate of conviction and an amended uniformsentence and commitment form.