| People v Dolison |
| 2020 NY Slip Op 07435 [189 AD3d 1779] |
| December 10, 2020 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Samuel Dolison, Appellant. |
Kathy Manley, Selkirk, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Pritzker, J. Appeal from a judgment of the Supreme Court (Breslin, J.), rendered April 17,2018, 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 criminal possession of a controlled substancein the third degree and criminal possession of a controlled substance in the fourth degreestemming from his arrest following a search of his person that revealed crack cocaine. Defensecounsel thereafter moved to suppress the crack cocaine, which motion Supreme Court deniedfollowing a hearing. Subsequently, the People amended the indictment by reducing the secondcount to criminal possession of a controlled substance in the fifth degree. Pursuant to a pleaagreement, defendant pleaded guilty to the reduced charge in satisfaction of the indictment andpurportedly waived his right to appeal. After his plea, defendant made a pro se motion towithdraw his guilty plea and also indicated that he had fired his counsel. Supreme Courtappointed new counsel to represent defendant and then denied the motion. In accordance with theterms of the plea agreement, defendant was sentenced as a second felony offender to two years inprison followed by one year of postrelease supervision, to run consecutively to the sentenceimposed on a separate drug conviction. Defendant appeals.
We affirm. Contrary to his contention, defendant validly waived his right to appeal, bothorally and in writing (see People vSanders, 25 NY3d 337, 339-341 [2015]; People v Williams, 185 AD3d 1359, 1360 [2020]). To that end,Supreme Court clearly advised defendant that his right to appeal was "separate and apart andindependent" of the trial rights that he waived by virtue of his guilty plea, and that the waiver ofappeal was part of the plea bargain. Supreme Court also advised defendant regarding theconsequences of the appeal waiver. When asked if he understood the waiver of appeal and if hewished to enter into the waiver as part of the plea agreement, defendant responded affirmatively.Defendant also signed a written appeal waiver, after reviewing it with counsel, who informed thecourt that defendant indicated that he understood the waiver and had signed it. The writtenwaiver specifically informed defendant that his waiver included "any issues regarding thesentence being harsh and/or excessive." Further, given that defendant, at the time of the plea, wasa 46-year-old second felony offender with "considerable experience with the criminal justicesystem" (People v Danzy, 182AD3d 920, 921 [2020], lv denied 35 NY3d 1043 [2020]; see People v Lambert, 151 AD3d1119, 1119 [2017], lv denied 29 NY3d 1092 [2017]), we find that defendant's waiverof appeal was knowing, voluntary and intelligent. Thus, defendant's challenges to the denial ofhis suppression motion and the severity of the agreed-upon sentence are precluded (see People v Andino, 185 AD3d1218[*2], 1219 [2020], lv denied 35 NY3d 1110[2020]; People v Danzy, 182 AD3d at 921; People v Johnson, 153 AD3d 1031, 1032 [2017], lv denied30 NY3d 980 [2017]).
Defendant also contends that his guilty plea was not knowing, voluntary and intelligent dueto his history of mental health issues. Initially, as noted by the People, there is no indication inthe record that defendant's mental health issues were raised anytime during the plea proceedings,nor is there support for his claim that he was not thinking clearly at that time. To that end,Supreme Court engaged in a very detailed plea colloquy, and defendant communicated hisunderstanding of the rights that he was forfeiting by pleading guilty. Simply stated, "the recordfails to establish that defendant's mental health issues interfered with his ability to understand theproceedings or impacted the voluntary nature of his plea" (People v Taft, 169 AD3d 1266, 1267 [2019], lv denied 33NY3d 1074 [2019]; see People vGumbs, 169 AD3d 1119, 1119-1120 [2019], lv denied 33 NY3d 1105 [2019]).Moreover, to the extent that defendant's mental health issues were mentioned by his newlyassigned counsel at sentencing, this was in connection with the length of the sentence to beimposed and the services to be provided to defendant in prison, not with respect to thevoluntariness of his plea (see People vGumbs, 182 AD3d 701, 703 [2020], lv denied 35 NY3d 1066 [2020]). In viewof the foregoing, we find that defendant's guilty plea was knowing, voluntary and intelligent.
Egan Jr., J.P., Mulvey, Aarons and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.