The People of the State of New York, Respondent, v. Timothy Marshall, Defendant–Appellant. (2011)

Supreme Court, Appellate Division, First Department, New York.

The People of the State of New York, Respondent, v. Timothy Marshall, Defendant–Appellant.

4998

Decided: May 05, 2011

Tom, J.P., Mazzarelli, Acosta, DeGrasse, Román, JJ.

Robert S. Dean, Center for Appellate Litigation, New York (Jonathan M. Kirshbaum of counsel), and Chadbourne & Parke LLP, New York (Christopher Cusmano of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), for respondent.

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered April 19, 2010, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony drug offender whose prior conviction was a violent felony, to a term of 6 years, unanimously affirmed.

Defendant's waiver of his right to appeal was invalid because the court conflated the appeal waiver with the rights automatically waived by the guilty plea. Nonetheless, the court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, including its evaluation of inconsistencies in testimony (see People v. Prochilo, 41 N.Y.2d 759, 761 [1977] ). Evidence credited by the court established a lawful car stop, followed by a lawful seizure of drugs.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

CLERK

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