PEOPLE v. MARTIN (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  On appeal from a judgment convicting him upon a plea of guilty of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1]), defendant contends that the waiver of the right to appeal is invalid and that County Court erred in denying his suppression motion.  Contrary to defendant's contention, the waiver of the right to appeal is valid because during the colloquy the court established, through more than a mere single reference, that the right to appeal was “separate and distinct” from those rights automatically forfeited by the plea (People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  see People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016];  People v. Richards, 93 A.D.3d 1240, 1240, 940 N.Y.S.2d 431 [4th Dept. 2012], lv denied 20 N.Y.3d 1014, 960 N.Y.S.2d 357, 984 N.E.2d 332 [2013]), and the court's language did not “ ‘mischaracterize[ ] the nature of the right ․ defendant [was] being asked to cede’ ” (People v. Smalley, 38 A.D.3d 1281, 1282, 834 N.Y.S.2d 905 [4th Dept. 2007]).  Moreover, the court ascertained on the record that defendant had reviewed and signed the written waiver of the right to appeal (see People v. Elmer, 19 N.Y.3d 501, 510, 950 N.Y.S.2d 77, 973 N.E.2d 172 [2012]), which explained in detail the right that he was waiving.

The valid waiver of the right to appeal encompasses defendant's challenges to the court's suppression ruling (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999];  People v. Rohadfox, 175 A.D.3d 1813, 1814, 109 N.Y.S.3d 537 [4th Dept. 2019], lv denied 34 N.Y.3d 1019, 114 N.Y.S.3d 743, 138 N.E.3d 472 [2019];  People v. Beardsley, 173 A.D.3d 1722, 1723, 102 N.Y.S.3d 844 [4th Dept. 2019], lv denied 34 N.Y.3d 928, 109 N.Y.S.3d 739, 133 N.E.3d 444 [2019]).