| People v Thomas |
| 2018 NY Slip Op 01100 [158 AD3d 953] |
| February 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v GavinThomas, Appellant. |
Dennis J. Lamb, Troy, for appellant.
P. David Soares, District Attorney, Albany (Emily A. Schultz of counsel), forrespondent.
Aarons, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered December 30, 2015, convicting defendant upon his plea of guilty of the crime ofcriminal sale of a controlled substance in the third degree.
Defendant pleaded guilty to criminal sale of a controlled substance in the third degree andwaived his right to appeal. At sentencing, defendant made a pro se motion to withdraw his plea,claiming that he was confused as to why a prior, more favorable plea agreement had beenwithdrawn. County Court denied the motion and sentenced defendant as a second violent felonyoffender, in accordance with the plea agreement, to a prison term of six years, followed by threeyears of postrelease supervision, the sentence to run concurrently with a sentence he wascurrently serving. Defendant appeals.
Initially, a review of the plea colloquy establishes that defendant's waiver of the right toappeal was valid inasmuch as County Court specifically advised defendant of the separate anddistinct nature of the appeal waiver, which defendant, both verbally and by executing a writtenappeal waiver, acknowledged he understood (see People v Gray, 152 AD3d 1068, 1069 [2017], lv denied30 NY3d 980 [2017]; People vPixley, 150 AD3d 1555, 1556-1557 [2017], lv denied 30 NY3d 952 [2017]).Defendant's challenge to the voluntariness of the guilty plea, however, is not precluded by hiswaiver of appeal and has been preserved by his unsuccessful motion to withdraw his guilty plea(see People v Gray, 152 AD3d at 1070; People v Massia, 131 AD3d [*2]1280, 1281 [2015], lv denied 26 NY3d 1041 [2015]).Nevertheless, we find defendant's contention to be without merit. The plea colloquy establishesthat defendant was aware that the prior plea bargain had been withdrawn. Defendantunequivocally acknowledged that he understood the terms of the plea agreement, understood theconsequences of entering a guilty plea, had enough time to discuss the matter with counsel andwas not being coerced into accepting the plea agreement (see People v Brown, 154 AD3d 1004, 1006-1007 [2017]). Nothingin the plea colloquy reflects any confusion on the part of defendant regarding the nature of theplea agreement. As such, we are satisfied that defendant's plea was knowingly, voluntarily andintelligently entered (see id. at 1007; People v McGowan, 117 AD3d 1202, 1202 [2014]).
To the extent that defendant seeks specific performance of the initial, more favorable pleaoffer that was withdrawn, we find that "this principle does not apply in this case insofar asdefendant never entered a plea of guilty [in connection with the initial plea offer] and never actedto his detriment in reliance upon that plea [offer]" (People v Rhodes, 172 AD2d 936, 937[1991], lv denied 78 NY2d 973 [1991]). Notably, the fact that defendant waived asuppression hearing at the time of the initial plea offer did not prejudice defendant inasmuch ashe subsequently accepted the instant plea offer and such waiver of suppression issues is aconsequence, not a condition, of a plea (see People v Weldon, 154 AD3d 1009, 1010 [2017]; People vWhite, 300 AD2d 830, 832 [2002], lv denied 99 NY2d 633 [2003]). Defendant'sremaining contentions, including that he received ineffective assistance of counsel, have beenreviewed and found to be lacking in merit.
Garry, P.J., Clark, Mulvey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.