PEOPLE v. PEREZ (2026)

DECISION & ORDER

Appeals by the defendant from four judgments of the Supreme Court, Kings County (William Harrington, J.), each rendered May 31, 2022, convicting him of burglary in the third degree under Indictment No. 4615/19, burglary in the third degree under Indictment No. 7226/19, burglary in the third degree under Indictment No. 798/20, and burglary in the third degree under Indictment No. 74006/21, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Esson, 225 A.D.3d 786, 205 N.Y.S.3d 496).  Contrary to the defendant's contention, the Supreme Court adequately explained, and the defendant acknowledged that he understood, the separate and distinct nature of the waiver of the right to appeal (see People v. Esson, 225 A.D.3d at 787, 205 N.Y.S.3d 496;  People v. Headley, 197 A.D.3d 1329, 1330, 151 N.Y.S.3d 905).  The defendant's valid waiver of his right to appeal precludes appellate review of his challenge to the procedure used to adjudicate him as a second felony offender (see People v. Simpson, 244 A.D.3d 762, 243 N.Y.S.3d 528;  People v. Leon, 200 A.D.3d 717, 717, 154 N.Y.S.3d 875;  People v. Meyers, 172 A.D.3d 1236, 1237, 98 N.Y.S.3d 879;  People v. Rodriguez, 82 A.D.3d 794, 795, 917 N.Y.S.2d 917).

To the extent the defendant contends that New York's predicate felony offender statutes are facially unconstitutional, that contention is not precluded by the appeal waiver (see People v. Johnson, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 06528).  However, that contention is unpreserved for appellate review (see CPL 470.05[2];  People v. Hernandez, 43 N.Y.3d 591, 597, 239 N.Y.S.3d 59, 265 N.E.3d 1076;  People v. Munoz, 237 A.D.3d 1110, 1111, 230 N.Y.S.3d 414), and we decline to reach it in the exercise of our interest of justice jurisdiction (see People v. Munoz, 237 A.D.3d at 1111, 230 N.Y.S.3d 414).

DILLON, J.P., CHAMBERS, WAN and LOVE, JJ., concur.