People v Feurtado

2019 NY Slip Op 03844 [172 AD3d 1620]

May 16, 2019

Appellate Division, Third Department

As corrected through Wednesday, July 3, 2019

[*1]

The People of the State of New York,Respondent, v Desmond Feurtado, Appellant.

Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant.

Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), forrespondent.

Mulvey, J. Appeal from a judgment of the County Court of Warren County (Hall Jr., J.),rendered March 22, 2017, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the fourth degree.

Defendant was charged by indictment with criminal possession of a controlled substance inthe third degree and criminal possession of a controlled substance in the fourth degree afterpolice discovered him in possession of cocaine during a traffic stop. Following a hearing, CountyCourt denied defendant's suppression motion. Defendant subsequently pleaded guilty to criminalpossession of a controlled substance in the fourth degree in satisfaction of the indictment andwaived his right to appeal. Consistent with the plea agreement, the court sentenced defendant tothree years in prison, followed by 11/2 years of postrelease supervision, togetherwith an order directing his enrollment in a shock incarceration program. Defendant appeals.

Defendant validly waived his right to appeal the issues he now raises. "Contrary todefendant's contention, the waiver of appeal did not need to specify that it encompassed the rightto appeal suppression rulings, although this specificity has been recognized as the 'betterpractice,' as no particular litany is required and a general, comprehensive waiver of appeal issufficient for this purpose. Further, the record reflects that an appeal waiver was a condition ofthe plea agreement, [County C]ourt explained its separate and distinct nature and defendantindicated that he understood and agreed to it" (People v Johnson, 153 AD3d 1031, 1032 [2017] [citationsomitted], lv denied 30 NY3d 980 [2017], quoting People v Kemp, 94 NY2d 831,833 [1999]; see People v Zippo, 136AD3d 1222, 1222 [2016], lv denied 27 NY3d 1141 [2016]). The court alsoconfirmed that defendant, after discussion with counsel, understood and signed a writtendocument specifying that he waived various grounds for appeal including, among other things,any court decisions regarding any defense motions. Thus, we are satisfied that defendantknowingly, intelligently and voluntarily waived his right to appeal (see People v Adams, 165 AD3d1343, 1344 [2018]). The valid appeal waiver precludes defendant's arguments challengingthe denial of his suppression motion (seePeople v Sanders, 25 NY3d 337, 342 [2015]; People v Johnson, 153 AD3d at1032; People v Tetreault, 152 AD3d1081, 1082 [2017], lv denied 30 NY3d 984 [2017]) and the alleged excessiveness ofthe sentence (see People v Patterson,164 AD3d 1568, 1569 [2018]).

Garry, P.J., Lynch, Clark and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.