| People v Johnson |
| 2017 NY Slip Op 06102 [153 AD3d 1031] |
| August 10, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jermaine Johnson, Appellant. |
Paul J. Connolly, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered August 28,2013 in Albany County, convicting defendant upon his plea of guilty of the crime of criminalpossession of marihuana in the second degree.
Following the execution of a search warrant at defendant's apartment, he was charged byindictment with criminal possession of marihuana in the second degree and two counts ofcriminal possession of a weapon in the fourth degree. Following a pretrial hearing, SupremeCourt concluded that probable cause was presented to support the issuance of the search warrantand denied defendant's motion to suppress the evidence obtained as a result of its execution.Defendant then pleaded guilty to criminal possession of marihuana in the second degree pursuantto a plea agreement that required that he waive his right to appeal, and he signed a written waiverof appeal. In accordance with the agreement, the court imposed a prison term of two years withone year of postrelease supervision, to be served consecutively to another, recently imposedsentence. Defendant now appeals.
Defendant's sole challenge on appeal is to Supreme Court's denial of his motion to suppress,which he argues survives his waiver of appeal. However, defendant's general, unqualified appealwaiver precludes his challenge to the adverse suppression ruling (see People v Kemp, 94NY2d 831, 833 [1999]; People vZippo, 136 AD3d 1222, 1222 [2016], lv denied 27 NY3d 1141 [2016]; People v Simmons, 129 AD3d1200, 1201 [2015], lv denied 27 NY3d 1075[*2][2016]). Contrary to defendant's contention, the waiver of appealdid not need to specify that it encompassed the right to appeal suppression rulings, although thisspecificity has been recognized as the "better practice," as no particular litany is required and ageneral, comprehensive waiver of appeal is sufficient for this purpose (People v Kemp,94 NY2d at 833; accord People v Zippo, 136 AD3d at 1222; see People v Sanders, 25 NY3d337, 342 [2015]). Further, the record reflects that an appeal waiver was a condition of theplea agreement, the court explained its separate and distinct nature and defendant indicated thathe understood and agreed to it. After reviewing the waiver with counsel, defendant then signed awritten waiver in open court, which explained that he ordinarily retained the right to appeal andadequately reinforced the consequences of relinquishing that right. Accordingly, as defendant'scombined oral and written waiver of appeal was knowing, voluntary and intelligent (see People v Lopez, 6 NY3d 248,256 [2006]; People v Mahon, 148AD3d 1303, 1303 [2017]; People vTaylor, 144 AD3d 1317, 1318 [2016], lv denied 28 NY3d 1151 [2017]), thisclaim is foreclosed.
Peters, P.J., Garry, Egan Jr. and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.