PEOPLE v. THOMAS (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered December 30, 2015, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

Defendant pleaded guilty to criminal sale of a controlled substance in the third degree and waived his right to appeal.  At sentencing, defendant made a pro se motion to withdraw his plea, claiming that he was confused as to why a prior, more favorable plea agreement had been withdrawn.  County Court denied the motion and sentenced defendant as a second violent felony offender, in accordance with the plea agreement, to a prison term of six years, followed by three years of postrelease supervision, the sentence to run concurrently with a sentence he was currently serving.  Defendant appeals.

Initially, a review of the plea colloquy establishes that defendant's waiver of the right to appeal was valid inasmuch as County Court specifically advised defendant of the separate and distinct nature of the appeal waiver, which defendant, both verbally and by executing a written appeal waiver, acknowledged he understood (see People v. Gray, 152 A.D.3d 1068, 1069, 59 N.Y.S.3d 580 [2017], lv denied 30 N.Y.3d 980, 67 N.Y.S.3d 582, 89 N.E.3d 1262 [2017];  People v. Pixley, 150 A.D.3d 1555, 1556–1557, 56 N.Y.S.3d 578 [2017], lv denied 30 N.Y.3d 952, 67 N.Y.S.3d 136, 89 N.E.3d 526 [2017] ).  Defendant's challenge to the voluntariness of the guilty plea, however, is not precluded by his waiver of appeal and has been preserved by his unsuccessful motion to withdraw his guilty plea (see People v. Gray, 152 A.D.3d at 1070, 59 N.Y.S.3d 580;  People v. Massia, 131 A.D.3d 1280, 1281, 15 N.Y.S.3d 515 [2015], lv denied 26 N.Y.3d 1041, 22 N.Y.S.3d 170, 43 N.E.3d 380 [2015] ).  Nevertheless, we find defendant's contention to be without merit.  The plea colloquy establishes that defendant was aware that the prior plea bargain had been withdrawn.  Defendant unequivocally acknowledged that he understood the terms of the plea agreement, understood the consequences of entering a guilty plea, had enough time to discuss the matter with counsel and was not being coerced into accepting the plea agreement (see People v. Brown, 154 A.D.3d 1004, 1006–1007, 61 N.Y.S.3d 717 [2017] ).  Nothing in the plea colloquy reflects any confusion on the part of defendant regarding the nature of the plea agreement.  As such, we are satisfied that defendant's plea was knowingly, voluntarily and intelligently entered (see id. at 1007, 61 N.Y.S.3d 717;  People v. McGowan, 117 A.D.3d 1202, 1202, 984 N.Y.S.2d 701 [2014] ).

To the extent that defendant seeks specific performance of the initial, more favorable plea offer that was withdrawn, we find that “this principle does not apply in this case insofar as defendant never entered a plea of guilty [in connection with the initial plea offer] and never acted to his detriment in reliance upon that plea [offer]” (People v. Rhodes, 172 A.D.2d 936, 937, 568 N.Y.S.2d 663 [1991], lv denied 78 N.Y.2d 973, 574 N.Y.S.2d 952, 580 N.E.2d 424 [1991] ).  Notably, the fact that defendant waived a suppression hearing at the time of the initial plea offer did not prejudice defendant inasmuch as he subsequently accepted the instant plea offer and such waiver of suppression issues is a consequence, not a condition, of a plea (see People v. Weldon, 154 A.D.3d 1009, 1010, 60 N.Y.S.3d 854 [2017];  People v. White, 300 A.D.2d 830, 832, 752 N.Y.S.2d 166 [2002], lv denied 99 N.Y.2d 633, 760 N.Y.S.2d 115, 790 N.E.2d 289 [2003] ).  Defendant's remaining contentions, including that he received ineffective assistance of counsel, have been reviewed and found to be lacking in merit.

ORDERED that the judgment is affirmed.

Aarons, J.

Garry, P.J., Clark, Mulvey and Pritzker, JJ., concur.