| People v Hightower-Castro |
| 2023 NY Slip Op 04138 [219 AD3d 504] |
| August 2, 2023 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Wiseallah Hightower-Castro,Appellant. |
Arza Feldman, Manhasset, NY (Steven A. Feldman of counsel), for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Jason R. Richards and Jared A.Chester of counsel; Matthew C. Frankel on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Howard E. Sturim, J.), rendered February 3, 2021, convicting him of criminalpossession of a weapon in the third degree, upon his plea of guilty, and imposingsentence.
Ordered that the judgment is affirmed.
In March 2020, the defendant entered a plea of guilty to criminal possession of aweapon in the third degree arising from his arrest during a random search of hisresidence by parole officers from the Department of Corrections and CommunitySupervision, wherein a gun was found inside of the defendant's bedroom. As part of theplea agreement, the defendant waived his right to appeal.
Contrary to the defendant's contention, the record demonstrates that he knowingly,intelligently, and voluntarily waived his right to appeal (see People v Thomas, 34 NY3d545, 559-560 [2019]; People v Chung, 213 AD3d 107, 111 [2023]).
With respect to the defendant's challenge to the denial of his motion to suppressphysical evidence and his statements to law enforcement officials, " '[t]hedefendant's valid waiver of his right to appeal precludes appellate review of his challengeto the hearing court's suppression determination' " (People v Barnes, 210 AD3d792, 793 [2022], quoting People v Matos, 176 AD3d 976, 976 [2019]; see Peoplev Kemp, 94 NY2d 831, 833 [1999]).
Although the defendant's contention regarding the voluntariness of his plea basedupon the Supreme Court's failure to advise him of potential deportation consequencessurvives his waiver of the right to appeal (see People v Peque, 22 NY3d 168, 183 [2013]), under thecircumstances of this case, where nothing in the record contradicts the defendant'sstatement made under oath at the plea proceeding that he is a citizen of the United Statesor the information contained within the Department of Probation PresentenceInvestigation Report indicating that the defendant is a United States citizen, we reject thedefendant's contention (seePeople v Brooks, 187 AD3d 931, 932 [2020]; People v Rolling, 186 AD3d1264, 1265 [2020]).
[*2] Thedefendant's challenge to the legality of his sentence also survives his valid waiver of theright to appeal (see People v Chung, 213 AD3d at 111; People v Spencer, 149 AD3d983, 983 [2017]), but it is without merit. The only remedy available to the defendantwith respect to his contention, in effect, that the time during which he was incarceratedon his parole violation should have been credited against the sentence imposed on thisconviction would be a credit of time served against the term of the underlying interruptedsentence, not the sentence which is the subject of this appeal (see Penal Law§ 70.30 [3]; Matter of Jeffrey v Ward, 44 NY2d 812, 813-814[1978]; Matter of Tubens v New York City Dept. of Correction, 143 AD2d 589,590 [1988]).
The defendant's remaining contention is precluded by his valid appeal waiver (see People v Price, 150 AD3d1153, 1154 [2017]; Peoplev Abdul, 112 AD3d 644, 645 [2013]; People v Andre L., 18 AD3d 575, 576 [2005]). Duffy, J.P.,Chambers, Christopher and Warhit, JJ., concur.