| People v Hall |
| 2018 NY Slip Op 08583 [167 AD3d 1165] |
| December 13, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Charles Hall, Also Known as Akbar,Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Barbara D. Underwood, Attorney General, New York City (Dennis A. Rambaud of counsel),for respondent.
Aarons, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered October 27,2016 in Albany County, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fifth degree.
Defendant was charged in an indictment with conspiracy in the second degree and attemptedcriminal possession of a controlled substance in the third degree. In satisfaction thereof,defendant pleaded guilty to the reduced charge of criminal possession of a controlled substancein the fifth degree and waived his right to appeal. He was sentenced as a second felony offender,in accordance with the terms of the plea agreement, to a prison term of two years followed bytwo years of postrelease supervision. Defendant appeals, and we affirm.
We are unpersuaded by defendant's contention that his waiver of the right to appeal isinvalid. County Court distinguished the right to appeal as separate and distinct from the rightsautomatically forfeited by a guilty plea, and a written appeal waiver was executed in open court.The written waiver indicated that defendant had been informed by his counsel of theconsequences of the waiver, and defendant acknowledged that he signed and understood thewaiver after conferring with counsel regarding its contents. We therefore find that defendant'scombined oral and written waiver of the right to appeal was valid (see People v Nieves, 163 AD3d1359, 1359-1360 [2018], lv denied 32 NY3d 1006 [2018]; People v Venable, 161 AD3d1315, 1315 [2018], lv denied 31 NY3d 1154 [2018]). As such, defendant'scontention that his sentence is harsh and excessive is precluded by his valid appeal waiver (see People v Royal, 161 AD3d1217, 1218 [2018], lv denied 32 NY3d 1007 [2018]; People v Dutcher, 156 AD3d1122, 1122 [2017]).
Defendant next contends that his guilty plea was jurisdictionally defective because criminalpossession of a controlled substance in the fifth degree is not a lesser included offense ofattempted criminal possession of a controlled substance in the third degree, as was charged in theindictment. However, defendant's claim that his plea ran afoul of CPL 220.10 does not survivehis valid appeal waiver (see People vWhite, 38 AD3d 320, 321 [2007], lv denied 9 NY3d 870 [2007]) and, in anyevent, is precluded by his guilty plea (see People v Keizer, 100 NY2d 114, 119 [2003];People v Hahn, 10 AD3d 809,809 [2004], lv denied 3 NY3d 757 [2004]). Even if properly before us, under the factualcircumstances of this case, we would find that there is no jurisdictional impediment to the court'sacceptance of defendant's plea (see People v Johnson, 89 NY2d 905, 908 [1996];People v Hahn, 10 AD3d at 810). Defendant's assertion that he received the ineffectiveassistance of counsel survives his waiver of appeal to the extent that it implicates thevoluntariness of his guilty plea (seePeople v Dubois, 150 AD3d 1562, 1563 [2017]). Such assertion, however, isunpreserved in the absence of an appropriate postallocution motion (see People v Gardiner, 159 AD3d1233, 1234 [2018], lv denied 31 NY3d 1082 [2018]; People v Hankerson, 147 AD3d1153, 1153 [2017], lv denied 29 NY3d 998 [2017]). Defendant's remainingcontentions have been examined and found to be without merit.
Devine, J.P., Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.