PEOPLE v. HALL (2018)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Breslin, J.), rendered October 27, 2016 in Albany County, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.

Defendant was charged in an indictment with conspiracy in the second degree and attempted criminal possession of a controlled substance in the third degree.  In satisfaction thereof, defendant pleaded guilty to the reduced charge of criminal possession of a controlled substance in the fifth degree and waived his right to appeal.  He was sentenced as a second felony offender, in accordance with the terms of the plea agreement, to a prison term of two years followed by two years of postrelease supervision.  Defendant appeals, and we affirm.

We are unpersuaded by defendant's contention that his waiver of the right to appeal is invalid.  County Court distinguished the right to appeal as separate and distinct from the rights automatically forfeited by a guilty plea, and a written appeal waiver was executed in open court.  The written waiver indicated that defendant had been informed by his counsel of the consequences of the waiver, and defendant acknowledged that he signed and understood the waiver after conferring with counsel regarding its contents.  We therefore find that defendant's combined oral and written waiver of the right to appeal was valid (see People v. Nieves, 163 A.D.3d 1359, 1359–1360, 77 N.Y.S.3d 908 [2018], lv denied 32 N.Y.3d 1006, 86 N.Y.S.3d 765, 111 N.E.3d 1121 [2018];  People v. Venable, 161 A.D.3d 1315, 1315, 73 N.Y.S.3d 459 [2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 435, 108 N.E.3d 509 [2018] ).  As such, defendant's contention that his sentence is harsh and excessive is precluded by his valid appeal waiver (see People v. Royal, 161 A.D.3d 1217, 1218, 77 N.Y.S.3d 181 [2018], lv denied 32 N.Y.3d 1007, 86 N.Y.S.3d 766, 111 N.E.3d 1122 [2018];  People v. Dutcher, 156 A.D.3d 1122, 1122, 67 N.Y.S.3d 354 [2017] ).

Defendant next contends that his guilty plea was jurisdictionally defective because criminal possession of a controlled substance in the fifth degree is not a lesser included offense of attempted criminal possession of a controlled substance in the third degree, as was charged in the indictment.  However, defendant's claim that his plea ran afoul of CPL 220.10 does not survive his valid appeal waiver (see People v. White, 38 A.D.3d 320, 321, 831 N.Y.S.2d 410 [2007], lv denied 9 N.Y.3d 870, 840 N.Y.S.2d 900, 872 N.E.2d 1206 [2007] ) and, in any event, is precluded by his guilty plea (see People v. Keizer, 100 N.Y.2d 114, 119, 760 N.Y.S.2d 720, 790 N.E.2d 1149 [2003];  People v. Hahn, 10 A.D.3d 809, 809, 782 N.Y.S.2d 161 [2004], lv denied 3 N.Y.3d 757, 788 N.Y.S.2d 673, 821 N.E.2d 978 [2004] ).  Even if properly before us, under the factual circumstances of this case, we would find that there is no jurisdictional impediment to the court's acceptance of defendant's plea (see People v. Johnson, 89 N.Y.2d 905, 908, 653 N.Y.S.2d 265, 675 N.E.2d 1217 [1996];  People v. Hahn, 10 A.D.3d at 810, 782 N.Y.S.2d 161).  Defendant's assertion that he received the ineffective assistance of counsel survives his waiver of appeal to the extent that it implicates the voluntariness of his guilty plea (see People v. Dubois, 150 A.D.3d 1562, 1563, 55 N.Y.S.3d 513 [2017] ).  Such assertion, however, is unpreserved in the absence of an appropriate postallocution motion (see People v. Gardner, 159 A.D.3d 1233, 1234, 73 N.Y.S.3d 643 [2018], lv denied 31 N.Y.3d 1082, 79 N.Y.S.3d 103, 103 N.E.3d 1250 [2018];  People v. Hankerson, 147 A.D.3d 1153, 1153, 46 N.Y.S.3d 438 [2017], lv denied 29 N.Y.3d 998, 57 N.Y.S.3d 719, 80 N.E.3d 412 [2017] ).  Defendant's remaining contentions have been examined and found to be without merit.

ORDERED that the judgment is affirmed.

Aarons, J.

Devine, J.P., Mulvey, Rumsey and Pritzker, JJ., concur.