PEOPLE v. KOZIK (2025)

MEMORANDUM AND ORDER

Appeals (1) from a judgment of the County Court of Schenectady County (Mark Caruso, J.), rendered December 13, 2021, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the second degree, and (2) from a judgment of said court, rendered December 13, 2021, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

At the commencement of a Mapp hearing, defendant pleaded guilty to criminal possession of a weapon in the second degree and the reduced charge of attempted criminal sale of a controlled substance in the third degree in satisfaction of two indictments and other pending charges and agreed to waive his right to appeal.  In accordance with the terms of the plea agreement, County Court sentenced defendant to concurrent prison terms of four years, to be followed by periods of postrelease supervision, the maximum of which was four years.  Defendant appeals.

Defendant's contention that defense counsel was ineffective for failing to proceed with a Mapp hearing prior to defendant accepting the plea offer does not implicate the voluntariness of defendant's plea and, therefore, is precluded by his unchallenged waiver of appeal (see People v. Murray, 197 A.D.3d 1355, 1356, 150 N.Y.S.3d 901 [3d Dept. 2021], lv denied 38 N.Y.3d 929, 164 N.Y.S.3d 2, 184 N.E.3d 823 [2022];  compare People v. Lende, 204 A.D.3d 1224, 1225, 165 N.Y.S.3d 382 [3d Dept. 2022], lv denied 38 N.Y.3d 1151, 174 N.Y.S.3d 51, 194 N.E.3d 758 [2022];  People v. Perez, 199 A.D.3d 1171, 1172, 154 N.Y.S.3d 495 [3d Dept. 2021], lv denied 38 N.Y.3d 929, 164 N.Y.S.3d 3, 184 N.E.3d 824 [2022]).  Similarly, to the extent that defendant challenges the sentence imposed as unduly harsh and severe, such claim is also foreclosed by his unchallenged appeal waiver (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Brabant, 229 A.D.3d 892, 897, 215 N.Y.S.3d 567 [3d Dept. 2024];  People v. Cochrane, 228 A.D.3d 1082, 1082, 210 N.Y.S.3d 842 [3d Dept. 2024], lv denied 42 N.Y.3d 1019, 221 N.Y.S.3d 491, 246 N.E.3d 934 [2024]).

ORDERED that the judgments are affirmed.

Powers, J.

Garry, P.J., Lynch, Fisher and Mackey, JJ., concur.