| People v Brown |
| 2019 NY Slip Op 02178 [170 AD3d 1375] |
| March 21, 2019 |
| Appellate Division, Third Department |
[*1](March 21, 2019)
| The People of the State of New York,Respondent, v James A. Brown, Appellant. |
Craig S. Leeds, Albany, for appellant.
Kristy L. Sprague, Elizabethtown (James E. Martineau of counsel), for respondent.
Devine, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered November 22, 2016, convicting defendant upon his plea of guilty of the crimes ofcriminal possession of a controlled substance in the third degree and criminal sale of a controlledsubstance in the fourth degree.
In satisfaction of three separate indictments charging defendant with multiple drug-relatedcrimes, he pleaded guilty to criminal possession of a controlled substance in the third degree andcriminal sale of a controlled substance in the fourth degree and waived his right to appeal, bothorally and in writing. In accordance with the terms of the plea agreement, defendant wassentenced as a second felony offender to eight years in prison followed by three years ofpostrelease supervision on the criminal possession conviction, and to six years in prison followedby two years of postrelease supervision on the criminal sale conviction, to run consecutively. Heappeals.
Initially, defendant's claim that certain evidence obtained by the police via the search warrantand eavesdropping warrant should have been suppressed is precluded by his valid waiver of theright to appeal (see People v Dobbs,157 AD3d 1122, 1123 [2018], lv denied 31 NY3d 983 [2018]; People v White, 154 AD3d 1012,1013 [2017], lv denied 30 NY3d 1065 [2017]). With respect to the waiver, the recorddiscloses that County Court thoroughly explained the nature of the right to appeal, including thatit was separate and distinct from the other rights forfeited by a guilty plea, and defendantindicated that he understood the consequences of the waiver. He then signed a comprehensivewritten waiver in open court after conferring with counsel. Notably, County Court adviseddefendant that he was giving up his right to any decisions on pretrial motions and that suchmotions would be treated as if they were withdrawn, to which defendant agreed. Furthermore, thewritten waiver specifically stated that it encompassed any decisions or pretrial rulings made indefendant's case. In view of defendant's valid appeal waiver (see People v Dobbs, 157AD3d at 1122-1123; People vJames, 155 AD3d 1094, 1095 [2017], lv denied 30 NY3d 1116 [2018]), he maynot challenge County Court's failure to grant that part of his omnibus motion seeking thesuppression of certain evidence.
Defendant further contends that his counsel's failure to pursue that part of his omnibusmotion seeking to suppress certain evidence deprived him of the effective assistance of counsel.Although this claim survives defendant's valid appeal waiver to the extent that it impacts thevoluntariness of his guilty plea, it is unpreserved for our review as the record does not reveal thatdefendant made an appropriate postallocution motion (see People v Kormos, 126 AD3d 1039, 1040 [2015]; People v Guyette, 121 AD3d 1430,1432 [2014], lv denied 27 NY3d 998 [2016]). Moreover, the narrow exception to thepreservation requirement is inapplicable as defendant did not make any statements during theplea colloquy that cast doubt upon his guilt or called into question the voluntariness of his plea(see People v Jawan, 165 AD3d1350, 1351 [2018], lv denied 32 NY3d 1173 [2019]; People v McDonald, 165 AD3d1327, 1328 [2018], lv denied 32 NY3d 1175 [2019]). Lastly, defendant's validappeal waiver forecloses his challenge to the severity of his sentence (see People v Lopez, 6 NY3d 248,256 [2006]; People v Jawan, 165 AD3d at 1351).
Garry, P.J, Lynch, Clark and Pritzker, JJ., concur. Ordered that the judgment is affirmed.