PEOPLE v. MACK (2019)

DECISION & ORDER

ORDERED that the judgments are affirmed.

A waiver of the right to appeal will not be enforced unless it was knowingly, intelligently, and voluntarily made (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145;  People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108).  Furthermore, the waiver is effective only when the record demonstrates that the defendant has a full appreciation of the consequences of that waiver (see People v. Cassadean, 160 A.D.3d 655, 656, 72 N.Y.S.3d 575;  People v. Brown, 122 A.D.3d 133, 136, 992 N.Y.S.2d 297).

Contrary to the defendant's contention, she knowingly, voluntarily, and intelligently waived her right to appeal at the time she entered her pleas of guilty (see People v. Moore, 140 A.D.3d 1091, 34 N.Y.S.3d 147;  People v. Corbin, 121 A.D.3d 803, 993 N.Y.S.2d 746).  The record shows that the Supreme Court adequately explained, and the defendant acknowledged that she understood, the separate and distinct nature of the waiver of the right to appeal, and the defendant signed a written waiver which she discussed with counsel and which adequately supplemented the oral colloquy.

“Whether a plea was knowing, intelligent and voluntary is dependent upon a number of factors ‘including the nature and terms of the agreement, the reasonableness of the bargain, and the age and experience of the accused’ ” (People v. Garcia, 92 N.Y.2d 869, 870, 677 N.Y.S.2d 772, 700 N.E.2d 311, quoting People v. Hidalgo, 91 N.Y.2d 733, 736, 675 N.Y.S.2d 327, 698 N.E.2d 46;  see People v. Conceicao, 26 N.Y.3d 375, 383–384, 23 N.Y.S.3d 124, 44 N.E.3d 199;  People v. Duart, 144 A.D.3d 1173, 41 N.Y.S.3d 747).

Although a claim that a plea of guilty was not voluntary survives a valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Persaud, 109 A.D.3d 626, 626, 970 N.Y.S.2d 324), here, the defendant's contention that her pleas of guilty were not knowingly, voluntarily, and intelligently entered is unpreserved for appellate review because she did not move to withdraw her pleas prior to the imposition of sentence (see People v. Bennett, 122 A.D.3d 871, 996 N.Y.S.2d 369;  People v. Lofton, 115 A.D.3d 989, 989, 982 N.Y.S.2d 587).  Further, the exception to the preservation requirement does not apply here, because the defendant's plea allocution did not cast significant doubt upon her guilt, negate an essential element of the crimes, or call into question the voluntariness of the pleas (see People v. Bennett, 122 A.D.3d at 872, 996 N.Y.S.2d 369).

In any event, the defendant's pleas of guilty to criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the third degree, and conspiracy in the fourth degree were knowingly, voluntarily, and intelligently entered (see People v. Duart, 144 A.D.3d at 1175, 41 N.Y.S.3d 747;  People v. Morocho, 129 A.D.3d 1107, 11 N.Y.S.3d 684;  People v. Safran, 113 A.D.3d 878, 979 N.Y.S.2d 399).  The defendant, who had the assistance of an attorney, and had a lengthy criminal history (see People v. Jacqueline Mack, 290 A.D.2d 517, 736 N.Y.S.2d 382), knowingly and voluntarily admitted her guilt after a thorough and complete plea allocution.  The defendant acknowledged that she had enough time to discuss this matter with her attorney before pleading guilty.  The defendant indicated that no one had threatened, forced, or pressured her to enter the pleas of guilty, and that her pleas of guilty were of her own free will.  She also sufficiently allocuted to the facts of the subject crimes.  Further, the defendant acknowledged that she understood that, by pleading guilty, she was forfeiting her rights to a trial by jury, to present witnesses on her own behalf, to remain silent, and to be proven guilty beyond a reasonable doubt.  In addition, the defendant was fully apprised of the consequences of her pleas, i.e., that her pleas of guilty would be considered a conviction, and that if she were ever convicted of another felony, she would be subject to an enhanced sentence.

To the extent the Supreme Court misstated the defendant's sentencing exposure, under the circumstances here, the misstatement could not have influenced the defendant's decision to plead guilty (see People v. Garcia, 92 N.Y.2d 869, 677 N.Y.S.2d 772, 700 N.E.2d 311;  People v. Mack, 140 A.D.3d 791, 31 N.Y.S.3d 212;  People v. Bravo, 72 A.D.3d 697, 899 N.Y.S.2d 280;  People v. Nicholas, 8 A.D.3d 300, 777 N.Y.S.2d 321).

The defendant's valid waiver of her right to appeal precludes appellate review of her challenge to the hearing court's suppression determination (see People v. Moore, 140 A.D.3d 1091, 34 N.Y.S.3d 147).  The defendant's contention that CPL 710.70(2) nonetheless requires, or at least permits, review of the order denying suppression, notwithstanding the valid appeal waiver, is without merit (see People v. Kemp, 94 N.Y.2d 831, 703 N.Y.S.2d 59, 724 N.E.2d 754;  People v. Charley, 80 A.D.3d 622, 914 N.Y.S.2d 661;  People v. Brathwaite, 263 A.D.2d 89, 91, 703 N.Y.S.2d 191;  see also People v. Friend, 173 A.D.2d 636, 571 N.Y.S.2d 1000).

SCHEINKMAN, P.J., DILLON, COHEN and CHRISTOPHER, JJ., concur.