| People v Gomez |
| 2018 NY Slip Op 04599 [162 AD3d 1311] |
| June 21, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Peter Gomez, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (McDonough, J.), renderedSeptember 4, 2015 in Albany County, convicting defendant upon his plea of guilty of the crimeof criminal sale of a controlled substance in the second degree.
A search of defendant's vehicle pursuant to a search warrant resulted in the recovery of anapproximately two-pound brick of cocaine. As a result, defendant was indicted for criminalpossession of a controlled substance in the first degree, criminal possession of a controlledsubstance in the third degree, criminal sale of a controlled substance in the first degree andoperating as a major trafficker. In full satisfaction of the charges, defendant pleaded guilty tocriminal sale of a controlled substance in the second degree and waived his right to appeal.Consistent with the terms of the plea agreement, Supreme Court sentenced defendant, as asecond felony offender, to a prison term of 12 years followed by five years of postreleasesupervision. Defendant appeals.
Defendant's challenge to the voluntariness of his guilty plea is unpreserved for our review asthe record does not reflect that defendant made an appropriate postallocution motion, despite theopportunity to do so prior to the imposition of his sentence (see CPL 220.60 [3]; People v Williams, 27 NY3d 212,214 [2016]; People v Conceicao, 26NY3d 375, 381 [2015]; People vYoung, 158 AD3d 955, 956 [2018], lv denied — NY3d — [May24, 2018]). Further, [*2]defendant made no statements during theplea colloquy to trigger the narrow exception to the preservation requirement (see People vLopez, 71 NY2d 662, 665-666 [1988]; People v Stover, 123 AD3d 1232, 1232 [2014], lv denied26 NY3d 936 [2015]).
We agree with defendant's contention that his appeal waiver is invalid. The record does notestablish that defendant understood the nature of the waiver or that the right to appeal is separateand distinct from other rights that are automatically forfeited by pleading guilty (see People v Lopez, 6 NY3d 248,256 [2006]). Although defendant is, thus, not precluded from raising his other arguments, theylack merit.
Supreme Court properly denied suppression of defendant's statement because it wasspontaneous and not elicited by police interrogation (see People v Wilhelm, 34 AD3d 40, 53 [2006]; People v Taylor, 1 AD3d 623, 624[2003], lv denied 1 NY3d 602 [2004]). The court also properly denied suppression of thecocaine seized from his car. The police were able to incorporate by reference the prior searchwarrant application into the subsequent application, considering that the earlier information wasgiven under oath to the same judge, who had a copy available to him and it was fresh in hismemory, having been submitted only four days earlier (see People v Cahill, 2 NY3d 14, 41-42 [2003]; People vTambe, 71 NY2d 492, 502 [1988]; People v Hawley, 192 AD2d 742, 743 [1993],lv denied 82 NY2d 896 [1993]). The court properly determined that the warrantapplications, read together, established the confidential informant's reliability and basis ofknowledge. The informant had previously provided information that police had substantiated inanother investigation, and the information in this case was based on the informant's direct contactwith defendant through text messages, which the authoring police officer had seen (see People v Mabeus, 63 AD3d1447, 1450-1452 [2009]). Given defendant's criminal history, the serious nature of the crimeand the fact that he agreed to the sentence as part of his plea bargain, we do not find that hissentence is harsh or excessive.
Garry, P.J., Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.