| People v Inman |
| 2019 NY Slip Op 53933 [177 AD3d 1167] |
| November 27, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Algun Inman, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Jessica M. Gorman of counsel), forappellant.
P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered November 9, 2016, convicting defendant upon his plea of guilty of thecrime of attempted criminal possession of a controlled substance in the third degree.
Defendant was charged in a six-count indictment after a traffic stop in which heattempted to flee, fought with police officers and, upon his arrest, was found to haveheroin and crack cocaine in his possession. His efforts to suppress the recovered drugswere unsuccessful. Thereafter, in satisfaction of the indictment and another pendingcharge, defendant pleaded guilty to the reduced count of attempted criminal possessionof a controlled substance in the third degree and waived his right to appeal. Ascontemplated by the plea agreement, County Court sentenced defendant, a second felonydrug offender previously convicted of a violent felony, to 7
Although the point was not made when the People first set forth the terms of the pleaagreement, defendant was advised during the plea colloquy, and before pleading guilty,that an appeal waiver was part of the bargain (see People v Sahler, 168 AD3d 1313, 1314 [2019]; People v Gilbert, 145 AD3d1196, 1196 [2016], lv denied 28 NY3d 1184 [2017]). County Courtdistinguished the right to appeal from the ones defendant would automatically forfeit bypleading guilty and ensured his understanding that a waiver of that right was expectedfrom him. Defendant then conferred with counsel, executed a detailed written appealwaiver in open court and confirmed that he had reviewed the waiver, understood it andagreed to be bound by it. Contrary to defendant's contention, the foregoing shows hiswaiver of the right to appeal to have been knowing, intelligent and voluntary (see People v Sanders, 25 NY3d337, 340-342 [2015]; People v Boyette, 175 AD3d 751, 752 [2019], lvdenied 34 NY3d 979 [2019]; People vSahler, 168 AD3d at 1314).
The valid appeal waiver precludes defendant's challenges to the denial of hissuppression motion and the severity of the agreed-upon sentence (see People v Feurtado, 172AD3d 1620, 1621 [2019], lv denied 34 NY3d 931 [2019]; People v Dorsey, 170 AD3d1325, 1326 [2019], lv denied 33 NY3d 1068 [2019]). The appeal waiverdoes not bar defendant's remaining claim of ineffective assistance of counsel insofar as itrelates to the voluntariness of the plea, but that claim is unpreserved in the absence of anappropriate postallocution motion (see People v Hunt, 176 AD3d 1253, 1254[2019]; People v Horton,173 AD3d 1342, 1343-1344 [2019], lv denied 34 NY3d 932 [2019]).Defendant made no statements "that negated an element of the charged crime, wereinconsistent with his guilt or otherwise called into question the voluntariness of his pleaand, therefore, the narrow exception to the preservation requirement was not triggered"(People v Carroll, 172AD3d 1821, 1822 [2019], lv denied 34 NY3d 929 [2019]; see People vLopez, 71 NY2d 662, 666 [1988]; People v Prince, 170 AD3d 1380, 1382 [2019]).
Garry, P.J., Mulvey and Aarons, JJ., concur. Ordered that the judgment isaffirmed.