| People v Hopper |
| 2017 NY Slip Op 06109 [153 AD3d 1045] |
| August 10, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jeffrey Hopper, Jr., Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), forappellant, and appellant pro se.
Mary E. Rain, District Attorney, Canton (Matthew L. Peabody of counsel), forrespondent.
McCarthy, J.P. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered November 7, 2014, convicting defendant upon his plea of guilty of thecrime of burglary in the second degree.
In satisfaction of a multicount indictment, defendant pleaded guilty to one count of burglaryin the second degree and waived his right to appeal. County Court sentenced him as a secondfelony offender to seven years in prison, to be followed by five years of postrelease supervision.Defendant appeals, and we now affirm.
Initially, we find that defendant's waiver of appeal was knowing, voluntary and intelligent(see People v Sanders, 25 NY3d337, 340-341 [2015]; People vLopez, 6 NY3d 248, 256 [2006]). During the plea colloquy, County Court ascertainedthat defendant had adequate opportunity to discuss the plea agreement with counsel, understoodthe terms and was voluntarily waiving his right to appeal as part of the plea bargain (see People v Belile, 137 AD3d1460, 1461 [2016]). County Court further ascertained that defendant understood that he wasgiving up his right to appeal, explained the appellate rights that could not be waived andascertained that defendant understood that the appeal waiver was separate and distinct from thoserights that he automatically forfeited by his guilty plea (see People v Lopez, 6 NY3d at256-257; People v Belile, 137 AD3d at 1461; People v Rushlow, 137 AD3d 1482, 1483 [2016]). Defendant [*2]executed a written waiver of appeal in open court that indicated thathe had sufficient time to discuss the waiver with counsel (see People v Belile, 137 AD3dat 1461; People v Lyman, 119 AD3d968, 969 [2014], lv denied 27 NY3d 1153 [2016]). Considering the foregoing,defendant demonstrated his understanding and voluntary waiver of his right to appeal (see People v Empey, 144 AD3d1201, 1202-1203 [2016], lv denied 28 NY3d 1144 [2017]; People v Lester, 141 AD3d 951,953 [2016], lv denied 28 NY3d 1185 [2017]; People v Belile, 137 AD3d at1461).
We reject defendant's contention that his guilty plea was not knowing, voluntary andintelligent because County Court failed to inquire as to a potential intoxication defense. Althoughdefendant's contention survives his valid appeal waiver, it is unpreserved for our reviewinasmuch as the record fails to reflect that defendant made an appropriate postallocution motionto withdraw his guilty plea (see CPL 220.60 [3]; People v McCray, 139 AD3d 1235, 1235-1236 [2016]; People v Buck, 136 AD3d 1117,1118 [2016]). Moreover, defendant did not make any statements during the plea colloquy thatcast doubt upon his guilt or negated an essential element of the crime so as to trigger the narrowexception to the preservation requirement or to impose an obligation upon County Court toinquire as to a potential intoxication defense (see People v Austin, 141 AD3d 956, 957 [2016]; People vBuck, 136 AD3d at 1118; People vBrown, 125 AD3d 1049, 1049-1050 [2015]). Indeed, defendant did not at any pointduring the plea colloquy indicate that he was intoxicated at the time of the burglary and admittedwithout hesitation that he broke into a dwelling with the intent to commit a crime therein (seePeople v Buck, 136 AD3d at 1118; People v Beblowski, 127 AD3d 1505, 1505 [2015], lvdenied 26 NY3d 926 [2015]; Peoplev Jones, 73 AD3d 1386, 1387 [2010]). Contrary to defendant's argument, the arrestreport and witnesses' depositions submitted to County Court before the plea colloquy did notsuggest that defendant was intoxicated at the time of the crime, and the postplea commentssubsequently made by defendant during the Probation Department's presentence investigationregarding his intoxication do not impose a duty of inquiry upon County Court concerning apotential intoxication defense (seePeople v Larock, 139 AD3d 1241, 1242 [2016], lv denied 28 NY3d 932 [2016];People v Buck, 136 AD3d at 1118 n 2; People v Phillips, 30 AD3d 911, 911 [2006], lv denied 7NY3d 869 [2006]).
Finally, defendant's valid appeal waiver precludes his challenge to the severity of thesentence imposed (see People vDoggett, 146 AD3d 1172, 1173 [2017], lv denied 29 NY3d 1031 [2017]; People v McCall, 146 AD3d 1156,1157 [2017], lv denied 29 NY3d 1034 [2017]; People v Belile, 137 AD3d at1461). Defendant's remaining contentions have been examined and found to be lacking inmerit.
Garry, Lynch, Rose and Devine, JJ., concur. Ordered that the judgment is affirmed.