| People v Tetreault |
| 2017 NY Slip Op 05878 [152 AD3d 1081] |
[*1]
| 1 The People of the State of New York, Respondent, v NapoleanN. Tetreault, Appellant. |
Linda B. Johnson, East Greenbush, for appellant.
Matthew Van Houten, District Attorney, Ithaca (Gary Surdell of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Cortland County (Campbell, J.),rendered June 19, 2015, convicting defendant upon his plea of guilty of the crimes of burglary inthe third degree and unlawful manufacture of methamphetamine in the third degree.
Defendant was charged by indictment with burglary in the third degree and two counts ofpetit larceny stemming from his theft from a convenience store. Thereafter, he was charged in aseparate indictment with unlawful manufacture of methamphetamine in the third degree andendangering the welfare of a child following the seizure of equipment and materials thatdefendant allegedly possessed and intended to use to produce methamphetamine. In fullsatisfaction of those two indictments, defendant pleaded guilty to burglary in the third degree andunlawful manufacture of methamphetamine in the third degree and waived his right to appeal. Hewas sentenced, in accordance with the plea agreement, as a second felony offender to 4 to 6 yearsin prison followed by two years of postrelease supervision. Defendant appeals, and weaffirm.
Defendant's claims that his guilty plea was not voluntary and that counsel providedineffective assistance with respect to the plea are unpreserved for our review, as he did not raisethem in an appropriate postallocution motion (see People v Rich, 140 AD3d 1407, 1407 [2016], lv denied28 NY3d 936 [2016]; People vLewis, 118 AD3d 1125, 1125 [2014], lv denied 24 NY3d 1003 [2014]). Further,the narrow exception to the preservation rule is inapplicable inasmuch as defendant "made nostatements during the plea allocution that negated an element of [*2]the crime[s] or otherwise called into doubt his guilt or thevoluntariness of his plea" (People vDarrell, 145 AD3d 1316, 1317 [2016]; see People v Lopez, 71 NY2d 662, 666[1988]). Were we to consider these claims, we would find that defendant's plea was knowingly,voluntarily and intelligently entered with the benefit of meaningful representation (see People v Briggs, 138 AD3d1355, 1356 [2016], lv denied 28 NY3d 927 [2016]; People v Pickett, 128 AD3d 1275,1276 [2015], lv denied 26 NY3d 930 [2015]).
Defendant's challenge to County Court's denial of his motion to suppress statements made tolaw enforcement and physical evidence seized upon his arrest in the burglary case is precluded byhis uncontested appeal waiver, which the record establishes was knowing, voluntary andintelligent (see People vHakkenberg, 142 AD3d 1251, 1252 [2016], lv denied 28 NY3d 1072 [2016]; People v Zippo, 136 AD3d 1222,1222-1223 [2016], lv denied 27 NY3d 1141 [2016]). To the extent that defendant raisesarguments concerning his motion to suppress statements made to police in the methamphetaminecase, such arguments are precluded by his valid appeal waiver and also by his guilty plea that wasentered before County Court rendered a decision on his motion (see People v Barton, 113 AD3d927, 928 [2014]; People vMorrison, 106 AD3d 1201, 1202 [2013], lv denied 23 NY3d 1065 [2014]; People v Morton, 84 AD3d 1507,1507 [2011], lv denied 18 NY3d 884 [2012]). Defendant's contention that physicalevidence that the police seized in the methamphetamine case must be suppressed is likewiseprecluded by his valid plea and appeal waiver (see People v Barton, 113 AD3d at 928; People v Williams, 6 AD3d 746,747 [2004], lv denied 3 NY3d 650 [2004]; People v Costa, 4 AD3d 675, 676 [2004], lv denied 2 NY3d797 [2004]), and is also unpreserved for our review inasmuch as defendant failed to raise it in hissuppression motion (see People vDurham, 146 AD3d 1070, 1072 [2017], lv denied 29 NY3d 997 [2017]; People v Shoga, 89 AD3d 1225,1230 [2011], lv denied 18 NY3d 886 [2012]).
Garry, Egan Jr., Rose and Mulvey, JJ., concur. Ordered that the judgment is affirmed.