| People v White |
| 2017 NY Slip Op 07009 [154 AD3d 1012] |
| October 5, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Joseph White, Appellant. |
Barrett D. Mack, Albany, for appellant, and appellant pro se.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Schenectady County (Milano, J.),rendered June 15, 2015, convicting defendant upon his plea of guilty of the crimes of attemptedcriminal possession of a weapon in the second degree and criminal possession of a controlledsubstance in the third degree.
After a confidential informant made controlled purchases of cocaine at defendant's residence,a search warrant was executed at the residence that reportedly disclosed, among other things, aquantity of cocaine and a loaded semi-automatic handgun. Defendant was subsequently chargedin a five-count indictment with crimes related to the possession of the handgun and drugs.County Court thereafter denied defendant's motion to suppress the evidence based upon, amongother grounds, claimed defects in the search warrant and denied the request for aMapp/Dunaway hearing, finding that the search warrant was supported byprobable cause and was not overly broad. In satisfaction of the charges, defendant pleaded guiltyto the reduced crime of attempted criminal possession of a weapon in the second degree undercount 1 and to criminal possession of a controlled substance in the third degree under count 3.Pursuant to the plea agreement, defendant waived his right to appeal and was sentenced, as anadmitted second felony offender, to an aggregate prison term of 6
We affirm. As an initial matter, contrary to defendant's claim, we find that his [*2]combined oral and written waiver of appeal was knowing, voluntaryand intelligent (see People vSanders, 25 NY3d 337, 339-341 [2015]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Hall, 147 AD3d 1151,1151 [2017], lv denied 29 NY3d 1080 [2017]). To that end, defendant was advised thatan appeal waiver was a condition of the plea agreement and of its separate and distinct nature,and indicated that he agreed to and understood it (see People v Lopez, 6 NY3d at 256).Then, after consulting with his attorney off the record to review the written appeal waiver, whichoutlined his appeal rights and the consequences of the waiver, defendant and his attorneyexecuted it in open court (see People v Lopez, 6 NY3d at 256; People v Toledo, 144 AD3d 1332,1333 [2016], lv denied 29 NY3d 1001 [2017]). Given defendant's valid appeal waiver,his challenge to County Court's adverse suppression decision and the denial of a hearing isprecluded (see People v Sanders, 25 NY3d at 342; People v Kemp, 94 NY2d 831,833 [1999]; People v Payne, 148AD3d 1226, 1227 [2017], lv denied 29 NY3d 1084 [2017]). In that regard, thewritten waiver of appeal also expressly advised defendant that he was waiving all decisions,suppression hearings and rulings that had been made by the court and, during the plea allocution,he expressly withdrew all motions, further establishing that he had expressly and knowinglywaived those claims (see People v Kemp, 94 NY2d at 833; People v Zippo, 136 AD3d 1222,1222-1223 [2016], lv denied 27 NY3d 1141 [2016]).
While defendant's challenge to his plea as involuntary survives the appeal waiver, it was notpreserved by an appropriate postallocution motion despite an opportunity to do so (seeCPL 220.60 [3]), and defendant made no statements during the plea colloquy that triggered theexception to the preservation requirement (see People v Williams, 27 NY3d 212, 214, 219-222 [2016];People v Lopez, 71 NY2d 662, 666 [1988]; People v Hall, 147 AD3d at 1152).We have reviewed defendant's remaining contentions, including those raised in his pro se briefs,and conclude that they lack merit.
Garry, J.P., Egan Jr., Lynch and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.