THE PEOPLE OF THE STATE OF NEW YORK v. THOMAS KORMOS JR

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Supreme Court, Appellate Division, Third Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THOMAS F. KORMOS JR., Appellant.

105467

Decided: March 05, 2015

Before:  McCarthy, J.P., Egan Jr., Lynch and Clark, JJ. Linda B. Johnson, West Sand Lake, for appellant. Gerald F. Mollen, District Attorney, Binghamton (Peter N. DeLucia of counsel), for respondent.

MEMORANDUM AND ORDER

Calendar Date:  January 5, 2015

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered September 13, 2012, convicting defendant upon his plea of guilty of the crime of attempted assault in the first degree.

Defendant was charged in a five-count indictment with, among other things, attempted murder in the second degree.   The charges stemmed from a March 2011 incident wherein defendant tied his wife to a bed, stuffed a sock in her throat and repeatedly beat her.   Following the denial of defendant's motion to suppress certain evidence and statements made by him to the police, the matter proceeded to trial.   During the course of jury selection, however, defendant elected to plead guilty—in full satisfaction of both the underlying and another indictment—to attempted assault in the first degree and waived his right to appeal.   Defendant thereafter was sentenced as a second violent felony offender to the agreed-upon prison term of 10 years followed by five years of postrelease supervision.   This appeal by defendant ensued.

We affirm.   The record reveals that County Court sufficiently explained the separate nature of the waiver of the right to appeal;  additionally, following discussions with counsel, defendant executed a written waiver to that effect and confirmed his understanding thereof.   Accordingly, we are satisfied that defendant's waiver of his right to appeal was knowing, intelligent and voluntary (see People v. Newton, 113 AD3d 1000, 1000–1001 [2014], lvs denied 23 NY3d 1039, 1041 [2014] ).   Notably, defendant's valid waiver precludes any challenge to County Court's suppression rulings (see People v. Easter, 122 AD3d 1073, 1074 [2014];  People v. Guyette, 121 AD3d 1430, 1431 [2014];  People v. Lewis, 118 AD3d 1125, 1125 [2014], lv denied 24 NY3d 1003 [2014] ).

Although defendant's challenge to the voluntariness of his plea survives his waiver of the right to appeal, this issue is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Smith, 121 AD3d 1131, 1132 [2014], lv denied _ NY3d _ [Jan. 13, 2015];  People v. Waite, 120 AD3d 1446, 1447 [2014] ).   The narrow exception to the preservation requirement was not triggered here, as defendant did not make any statements during the plea colloquy that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea (see People v. Banks, 122 AD3d 953, 953–954 [2014];  People v. Barnes, 119 AD3d 1290, 1291 [2014] ), and we find defendant's claim of coercion to be unpersuasive.

As for defendant's ineffective assistance of counsel claim, “[d]efendant's challenges to counsel's motion practice and discovery efforts were forfeited by his guilty plea” (People v. Trombley, 91 AD3d 1197, 1201 [2012], lv denied 21 NY3d 914 [2013] ).   To the extent that the balance of defendant's ineffective assistance of counsel claim impacts upon the voluntariness of his plea and, hence, survives his valid appeal waiver, such claim is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Guyette, 121 AD3d at 1431–1432;  People v. Newton, 113 AD3d at 1000–1001), and reversal in the interest of justice is not warranted (see People v. Gantt, 84 AD3d 1642, 1643 [2011], lv denied 18 NY3d 858 [2011] ).   Defendant's remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit.

McCarthy, J.P., Lynch and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court

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