| People v Nack |
| 2021 NY Slip Op 06882 [200 AD3d 1197] |
| December 9, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v John M. Nack, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant, andappellant pro se.
John M. Muehl, District Attorney, Cooperstown (Christopher James DiDonna of counsel),for respondent.
Clark, J. Appeal from a judgment of the County Court of Otsego County (Burns, J.),rendered May 4, 2018, convicting defendant upon his plea of guilty of the crime of attemptedcriminal sale of a controlled substance in the third degree.
In September 2015, based upon events occurring on two consecutive days in August 2015,defendant was charged by indictment with criminal sale of a controlled substance in the thirddegree and criminal possession of a controlled substance in the third degree. In 2016, defendantpleaded guilty to attempted criminal possession of a controlled substance in the third degree andagreed to waive his right to appeal. In accordance with the negotiated plea agreement, defendantwas thereafter sentenced to a prison term of six years, followed by two years of postreleasesupervision. In January 2018, County Court—upon the People's consent—granteddefendant's motion to vacate the judgment of conviction pursuant to CPL 440.10 (1) (h);consequently, County Court vacated defendant's conviction for attempted criminal possession ofa controlled substance in the third degree, assigned defendant new counsel and set the matterdown for trial.[FN1]
Defendant thereafter moved to, among other things, suppress certain statements that he madeto the police. Following a Huntley hearing, County Court denied defendant's motion tosuppress. In April 2018, after the parties had selected a jury, defendant pleaded guilty toattempted criminal sale of a controlled substance in the third degree with the understanding thathe would be sentenced to a prison term of seven years, followed by two years of postreleasesupervision. The plea agreement also required defendant to waive his right to appeal. In May2018, as contemplated by the plea agreement, defendant was sentenced to a term of seven yearsin prison, followed by two years of postrelease supervision. Defendant appeals.
We affirm. Initially, we find that defendant's waiver of his right to appeal was knowing,voluntary and intelligent. During the plea colloquy, County Court advised defendant that theappeal waiver was separate and distinct from the trial-related rights that defendant wasautomatically forfeiting by pleading guilty. County Court also explained that the appeal waiverwas a condition of the plea agreement, and defendant confirmed his understanding thereof.Further, defendant executed a written waiver of appeal, which reiterated that the right to appeal isseparate and distinct from those rights automatically forfeited by a guilty plea and confirmed thatdefendant had been fully apprised of his appellate rights and had a "full and fair opportunity todiscuss [those] matters" with defense counsel. Although the written waiver contained someoverbroad language, given "the totality of the circumstances," including defendant's recent andprior experience with the criminal justice system, the record reflects that defendant "understoodthe distinction that some appellate review survived[*2]" theappeal waiver and was aware of the fact that he was not waiving all potential appellate claims (People v Thomas, 34 NY3d 545,559-561 [2019]; see People vBlanchard, 188 AD3d 1414, 1415 [2020], lv denied 36 NY3d 1055[2021]).[FN2] Accordingly,we find that the appeal waiver was valid.
Although defendant's challenge to the voluntariness of his guilty plea survives his appealwaiver, such challenge is unpreserved for our review in the absence of an appropriatepostallocution motion (see People vDowns, 194 AD3d 1118, 1119 [2021], lv denied 37 NY3d 971 [2021]; People v Sablan, 177 AD3d 1024,1027 [2019], lv denied 34 NY3d 1132 [2020]). Defendant's contention that he receivedineffective assistance of counsel, to the extent that it impacts upon the voluntariness of his plea,also survives the appeal waiver, but is similarly unpreserved (see People v Stanley, 189 AD3d 1818, 1818 [2020]; People v Hart, 188 AD3d 1424,1425 [2020], lv denied 36 NY3d 1051 [2021]). Defendant did not make any statementsduring the plea colloquy or at sentencing that negated an element of the charged crime, wereinconsistent with his guilt or otherwise called into question the voluntariness of his plea so as totrigger the narrow exception to the preservation requirement (see People v Crossley, 191 AD3d 1046, 1047 [2021], lvdenied 37 NY3d 991 [2021]; Peoplev Hunt, 176 AD3d 1253, 1254 [2019]).
The remaining issues raised by defendant are foreclosed, either by his guilty plea or the validwaiver of appeal. Defendant argues that, after his prior guilty plea, the People failed to fulfilltheir obligation to preserve evidence until all appeals had been exhausted (see People v Mayo, 45 AD3d1361, 1362-1363 [2007]; People vHernandez, 25 AD3d 566, 567 [2006], lv denied 6 NY3d 848 [2006]) and thatCounty Court misstated the People's obligation in this respect, thereby "erroneously impl[ying]that the destruction of evidence was a non-issue." However, by pleading guilty, defendantforfeited his right to raise such argument (see People v Mayo, 45 AD3d at 1362-1363).Similarly, by pleading guilty, defendant forfeited his claim of prosecutorial vindictiveness(see People v Rodriguez, 55 NY2d 776, 777 [1981]; People v Perron, 6 AD3d 937, 938 [2004], lv denied 3NY3d 645 [2004]; People v Robertson, 279 AD2d 711, 712 [2001], lv denied 96NY2d 805 [2001]), his contention that the People improperly submitted hearsay evidence to thegrand jury (see People v Hansen, 95 NY2d 227, 233 [2000]), his assertion that theindictment should have been dismissed in furtherance of justice pursuant to CPL 210.40 (see People v LaPierre, 189 AD3d1813, 1816 [2020], lv denied 36 NY3d 1098 [2021]; People v Tavares, 273AD2d 707, 707 [2000], lv denied 95 NY2d 939 [2000]) and his argument that the Peopleviolated the sealing requirements of CPL 160.50 (see People v Hines, 82 AD3d 1694, 1694 [2011], lv denied17 NY3d 796 [2011]).[FN3]Finally, the valid appeal waiver forecloses defendant's challenge [*3]to the denial of his suppression motion (see People v Keene, 192 AD3d1195, 1196 [2021], lv denied 37 NY3d 957 [2021]; People v Schmidt, 57 AD3d 1104,1104 [2008]), his claim of judicial bias (see People v Danielson, 170 AD3d 1430, 1431-1432 [2019], lvdenied 33 NY3d 1030 [2019], cert denied 589 US &mdash, 140 S Ct 486 [2019])and his argument that the agreed-upon sentence is harsh and excessive (see People v Acevedo, 179 AD3d1397, 1399 [2020]; People vMoore, 167 AD3d 1158, 1159 [2018], lv denied 33 NY3d 951 [2019]).Accordingly, there is no basis upon which to disturb the judgment of conviction.
Egan Jr., J.P., Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that thejudgment is affirmed.
Footnote 1:Defendant filed a notice ofappeal from the 2016 judgment of conviction. However, after he successfully obtained reliefunder CPL 440.10 (1) (h), he withdrew that appeal.
Footnote 2:Overbroad language in a writtenwaiver can be overcome by the trial court ensuring, during the plea colloquy, that the defendantunderstands that some appellate and collateral review survives the appeal waiver (see Peoplev Thomas, 34 NY3d at 565-566; People v Gervasio, 190 AD3d 1190, 1191 [2021]).
Footnote 3:Defendant argues, in conclusoryfashion in his pro se supplemental brief, that County Court should have granted his motion todismiss the indictment under CPL 210.35 (5), an argument which "may be raised even after aplea of guilty" (People v Wilkins, 68 NY2d 269, 277 n 7 [1986]). However, defendant'sarguments on this point are no more than a rehashing of his claims under CPL 160.50 and210.40, which, as noted above, he waived by pleading guilty.