| People v Mack |
| 2019 NY Slip Op 00621 [168 AD3d 1100] |
| January 30, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jacqueline Mack, Appellant. |
Mark Diamond, New York, NY, for appellant.
Kevin P. Gilleece, Acting District Attorney, New City, NY (Tina L. Guccione of counsel),for respondent.
Appeals by the defendant from three judgments of the County Court, Rockland County(David S. Zuckerman, J.), all rendered December 13, 2016, convicting her of criminal possessionof a controlled substance in the third degree under indictment No. 15-406, criminal sale of acontrolled substance in the third degree under indictment No. 15-447, and conspiracy in thefourth degree under indictment No. 15-449, upon her pleas of guilty, and imposingsentences.
Ordered that the judgments are affirmed.
A waiver of the right to appeal will not be enforced unless it was knowingly, intelligently,and voluntarily made (see People vLopez, 6 NY3d 248, 256 [2006]; People v Callahan, 80 NY2d 273, 280 [1992]).Furthermore, the waiver is effective only when the record demonstrates that the defendant has afull appreciation of the consequences of that waiver (see People v Cassadean, 160 AD3d 655, 656 [2018]; People v Brown, 122 AD3d 133,136 [2014]).
Contrary to the defendant's contention, she knowingly, voluntarily, and intelligently waivedher right to appeal at the time she entered her pleas of guilty (see People v Moore, 140 AD3d 1091 [2016]; People v Corbin, 121 AD3d 803[2014]). The record shows that the Supreme Court adequately explained, and the defendantacknowledged that she understood, the separate and distinct nature of the waiver of the right toappeal, and the defendant signed a written waiver which she discussed with counsel and whichadequately supplemented the oral colloquy.
"Whether a plea was knowing, intelligent and voluntary is dependent upon a number offactors 'including the nature and terms of the agreement, the reasonableness of the bargain, andthe age and experience of the accused' " (People v Garcia, 92 NY2d 869, 870[1998], quoting People v Hidalgo, 91 NY2d 733, 736 [1998]; see People v Conceicao, 26 NY3d375, 383-384 [2015]; People vDuart, 144 AD3d 1173 [2016]).
Although a claim that a plea of guilty was not voluntary survives a valid waiver of the rightto appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Persaud, 109 AD3d 626,626 [2013]), here, the defendant's contention that her pleas of guilty were not knowingly,voluntarily, and intelligently entered is unpreserved for appellate review because she did notmove to withdraw her pleas prior to the imposition of sentence (see People v Bennett, 122 AD3d871 [2014]; People v Lofton,115 AD3d 989, 989 [2014]). Further, the exception to the preservation requirement does notapply here, because the defendant's plea allocution did not cast significant doubt upon her guilt,negate an essential element of the crimes, or call into question the voluntariness of the pleas(see People v Bennett, 122 AD3d at 872).
In any event, the defendant's pleas of guilty to criminal possession of a controlled substancein the third degree, criminal sale of a controlled substance in the third degree, and conspiracy inthe fourth degree were knowingly, voluntarily, and intelligently entered (see People vDuart, 144 AD3d at 1175; People vMorocho, 129 AD3d 1107 [2015]; People v Safran, 113 AD3d 878 [2014]). The defendant, who hadthe assistance of an attorney, and had a lengthy criminal history (see People v Mack, 290AD2d 517 [2002]), knowingly and voluntarily admitted her guilt after a thorough and completeplea allocution. The defendant acknowledged that she had enough time to discuss this matterwith her attorney before pleading guilty. The defendant indicated that no one had threatened,forced, or pressured her to enter the pleas of guilty, and that her pleas of guilty were of her ownfree will. She also sufficiently allocuted to the facts of the subject crimes. Further, the defendantacknowledged that she understood that, by pleading guilty, she was forfeiting her rights to a trialby jury, to present witnesses on her own behalf, to remain silent, and to be proved guilty beyonda reasonable doubt. In addition, the defendant was fully apprised of the consequences of herpleas, i.e., that her pleas of guilty would be considered a conviction, and that if she were everconvicted of another felony, she would be subject to an enhanced sentence.
To the extent the Supreme Court misstated the defendant's sentencing exposure, under thecircumstances here, the misstatement could not have influenced the defendant's decision to pleadguilty (see People v Garcia, 92 NY2d 869 [1998]; People v Mack, 140 AD3d 791 [2016]; People v Bravo, 72 AD3d 697[2010]; People v Nicholas, 8 AD3d300 [2004]).
The defendant's valid waiver of her right to appeal precludes appellate review of herchallenge to the hearing court's suppression determination (see People v Moore, 140 AD3d 1091 [2016]). The defendant'scontention that CPL 710.70 (2) nonetheless requires, or at least permits, review of the orderdenying suppression, notwithstanding the valid appeal waiver, is without merit (see People vKemp, 94 NY2d 831 [1999]; Peoplev Charley, 80 AD3d 622 [2011]; People v Brathwaite, 263 AD2d 89, 91 [2000];see also People v Friend, 173 AD2d 636 [1991]). Scheinkman, P.J., Dillon, Cohen andChristopher, JJ., concur.