PEOPLE v. SAUNDERS (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered April 15, 2015, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the third degree.

After a traffic stop, police found 21 bags of cocaine in defendant's pants.  Based on this encounter, he was charged in a seven-count indictment.  County Court denied defendant's suppression hearing.  Thereafter, defendant pleaded guilty to a reduced charge of attempted criminal possession of a controlled substance in the third degree in satisfaction of the indictment and waived his right to appeal, in exchange for a sentence of 41/212 years in prison, plus three years of postrelease supervision.  The court imposed the agreed-upon sentence.  Defendant appeals.

Defendant validly waived his right to appeal.  County Court made clear that the right to appeal is separate and distinct from the trial rights that are automatically forfeited by a guilty plea (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];  People v. Peterkin, 156 A.D.3d 962, 963, 64 N.Y.S.3d 617 [2017] ).  “A defendant may waive the right to appeal,” including the issue of an adverse suppression ruling, “as part of a bargained-for plea agreement” (People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ), “notwithstanding the statutory provision allowing an appeal of such ruling following entry of a guilty plea” (id., citing CPL 710.20[2] ).  The court is not required to specifically list each possible argument that will be precluded by the appeal waiver—which is generally intended to comprehensively cover all aspects of a case—as long as the waiver itself is knowing, voluntary and intelligent (see People v. Kemp, 94 N.Y.2d at 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;  People v. Muniz, 91 N.Y.2d 570, 575, 673 N.Y.S.2d 358, 696 N.E.2d 182 [1998] ).

County Court explained that, although defendant would ordinarily retain the right to appeal, the plea required him to waive his right to appeal both the conviction and sentence.  The court also received assurances from both defendant and counsel that they reviewed and discussed the waiver of appeal and that defendant understood and agreed to it.  While it may be the better practice for courts that have issued adverse suppression rulings to advise defendants that the waiver includes the right to appeal the suppression issue, the valid appeal waiver here precludes defendant's challenge to the denial of his suppression motion (see People v. Sanders, 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015];  People v. Kemp, 94 N.Y.2d at 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;  People v. Zippo, 136 A.D.3d 1222, 1222, 25 N.Y.S.3d 729 [2016], lv denied 27 N.Y.3d 1141, 39 N.Y.S.3d 124, 61 N.E.3d 523 [2016] ).  The valid appeal waiver also precludes any challenge to the severity of the sentence (see People v. Dobbs, 157 A.D.3d 1122, 1123, 68 N.Y.S.3d 781 [2018], lv denied 31 N.Y.3d 983, 77 N.Y.S.3d 661, 102 N.E.3d 438 [2018];  People v. Simmons, 129 A.D.3d 1200, 1201, 9 N.Y.S.3d 892 [2015], lv denied 27 N.Y.3d 1075, 38 N.Y.S.3d 845, 60 N.E.3d 1211 [2016] ).

ORDERED that the judgment is affirmed.

McCarthy, J.P.

Devine, Clark, Aarons and Pritzker, JJ., concur.