People v Tadd

2017 NY Slip Op 07011 [154 AD3d 1014]

October 5, 2017

Appellate Division, Third Department

As corrected through Wednesday, November 29, 2017

[*1]

The People of the State of New York,Respondent, v Gary A. Tadd Jr., Appellant.

Samantha Koolen, Albany, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), forrespondent.

Aarons, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered November 13, 2015, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the fifth degree.

While executing a search warrant at a residence located in Washington County, policeofficers recovered a quantity of heroin, cash and drug paraphernalia. Defendant was present at theresidence during the search along with others. As a result, he was charged in an indictment withcriminal possession of a controlled substance in the third degree and criminal use of drugparaphernalia in the second degree. In satisfaction of the indictment, defendant entered anAlford plea of guilty to the amended charge of criminal possession of a controlledsubstance in the fifth degree and waived his right to appeal. He was sentenced, in accordancewith the terms of the plea agreement, to 11/2 years in prison followed by one yearof postrelease supervision. He now appeals.

Initially, the People concede, and we agree, that defendant's waiver of appeal was invalid forfailure to comply with the requirements of People v Lopez (6 NY3d 248, 256-257 [2006]) and, as such, he isnot precluded from raising substantive challenges to the judgment of conviction (see People v Roshia, 133 AD3d1029, 1030 [2015], affd 28 NY3d 989 [2016]). Defendant contends that his counselwas ineffective due to his failure to request a suppression hearing with respect to itemsconfiscated during the search. He further claims that his Alford plea was invalid becauseit was involuntary and County Court accepted it without any strong [*2]evidence of defendant's guilt. Significantly, however, the recorddoes not reveal that defendant made an appropriate postallocution motion. Consequently, theseclaims have not been preserved for our review (see People v Dubois, 150 AD3d 1562, 1563 [2017]; People v Saylor, 132 AD3d 1018,1018 [2015]; People v Mears, 16AD3d 917, 917-918 [2005]; Peoplev Ebert, 15 AD3d 781, 782 [2005]). Furthermore, inasmuch as defendant did not makeany statements during the plea colloquy that cast doubt upon his guilt, the exception to thepreservation rule is inapplicable (see People v Dubois, 150 AD3d at 1563; People v Cooks, 150 AD3d 1323,1324 [2017]). Accordingly, the judgment must be affirmed.

Peters, P.J., Garry, Rose and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.