PEOPLE v. SANTALUCIA (2005)

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered July 24, 2002, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.

Defendant was indicted and charged with criminal possession of a controlled substance in the third and fourth degrees.   Prior to the commencement of a Dunaway/Mapp/Huntley hearing, defendant was offered a prison term of 4 1/212 to 9 years which would be withdrawn once the suppression hearing began.   After conferring with his attorney, defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree, acknowledging that he had an opportunity to speak with his attorney and was satisfied with his representation.   The colloquy reflects that defendant understood that he was giving up certain rights associated with a jury trial, acknowledged that he was not forced or threatened into pleading guilty, and specifically understood that he was giving up his right to a suppression hearing.   County Court also elicited an appeal waiver from defendant, and defendant admitted that he possessed more than one eighth of an ounce of cocaine.   Sentenced as a second felony offender in accordance with the plea agreement to a prison term of 4 1/212 to 9 years, defendant appealed.   This Court rejected a previous Anders brief (9 A.D.3d 740, 779 N.Y.S.2d 793 [2004] ), new counsel was assigned, and we now affirm.

 Defendant's challenge to the voluntariness of the plea, while not encompassed by his waiver of the right to appeal, is not preserved for our review inasmuch as he did not move to withdraw the plea or vacate the judgment of conviction (see People v. Hughes, 3 A.D.3d 736, 736, 770 N.Y.S.2d 666 [2004];  People v. Ward, 2 A.D.3d 1219, 1219, 768 N.Y.S.2d 850 [2003], lv. denied 2 N.Y.3d 808, 781 N.Y.S.2d 308, 814 N.E.2d 480 [2004] ).   Even considering defendant's challenge, we find that the plea was in all respects knowingly, voluntarily and intelligently entered (see People v. Willis, 3 A.D.3d 793, 793-794, 770 N.Y.S.2d 908 [2004], lv. denied 2 N.Y.3d 766, 778 N.Y.S.2d 785, 811 N.E.2d 47 [2004];  People v. Hughes, supra at 736, 770 N.Y.S.2d 666).   The fact that County Court would not extend the offer once the suppression hearing began does not support the inference that the plea was coerced (see People v. Coleman, 8 A.D.3d 825, 826, 778 N.Y.S.2d 576 [2004] ).

 Defendant's assertion that his arrest was unlawful does not survive his knowing and intelligent guilty plea and unqualified waiver of the right to appeal (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999];  People v. Allen, 82 N.Y.2d 761, 763, 603 N.Y.S.2d 820, 623 N.E.2d 1170 [1993];  People v. Moissett, 76 N.Y.2d 909, 911, 563 N.Y.S.2d 43, 564 N.E.2d 653 [1990];  People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986];  People v. Atwood, 9 A.D.3d 512, 513, 779 N.Y.S.2d 646 [2004] ).   Moreover, defendant was specifically advised that his plea would waive his right to a suppression hearing (see People v. Williams, 6 A.D.3d 746, 747, 776 N.Y.S.2d 329 [2004], lv. denied 3 N.Y.3d 650, 782 N.Y.S.2d 421, 816 N.E.2d 211 [2004] ). Similarly, his challenge to the sentence, which was imposed exactly as agreed in the plea, does not survive his waiver of appeal (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46 [1998];  People v. Kalenak, 2 A.D.3d 902, 903, 767 N.Y.S.2d 696 [2003], lv. denied 1 N.Y.3d 629, 777 N.Y.S.2d 28, 808 N.E.2d 1287 [2004];  People v. Bier, 307 A.D.2d 649, 651, 762 N.Y.S.2d 840 [2003], lv. denied 100 N.Y.2d 618, 767 N.Y.S.2d 401, 799 N.E.2d 624 [2003] ).

We have reviewed defendant's remaining claims, including those raised in his pro se submission, and find that they are precluded by his valid appeal waiver and otherwise lack merit.

ORDERED that the judgment is affirmed.

SPAIN, J.P.

CARPINELLO, ROSE, LAHTINEN and KANE, JJ., concur.