Opinion
04-28-2016
The PEOPLE of the State of New York, Respondent, v. Devon DOBBS, Appellant.
Carolyn B. George, Albany, for appellant. P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Carolyn B. George, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Opinion
ROSE, J.
Appeal from a judgment of the Supreme Court (Breslin, J.), rendered May 2, 2014 in Albany County, convicting defendant upon his plea of guilty of the crime of burglary in the second degree (two counts).
In satisfaction of a four-count indictment, defendant pleaded guilty to two counts of burglary in the second degree and waived his right to appeal. County Court thereafter sentenced defendant, as a second felony offender in accord with the negotiated plea bargain, to 12 years in prison to be followed by five years of postrelease supervision. Defendant now appeals.
We affirm. Although defendant argues that he was the subject of an impermissible police seizure such that the evidence against him should have been suppressed, this contention does not survive his knowing, voluntary and intelligent waiver of the right to appeal (see People v. Cooper, 126 A.D.3d 1046, 1047, 4 N.Y.S.3d 392 [2015], lv. denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015]; People v. Kormos, 126 A.D.3d 1039, 1040, 4 N.Y.S.3d 390 [2015]; People v. Hodge, 4 A.D.3d 676, 677, 772 N.Y.S.2d 748 [2004], lvs. denied 2 N.Y.3d 800, 781 N.Y.S.2d 300, 814 N.E.2d 472 [2004], 2 N.Y.3d 807, 781 N.Y.S.2d 306, 814 N.E.2d 478 [2004] ). The record reveals that County Court adequately explained the nature and consequences of the waiver, the fact that this aspect of his plea agreement was separate and distinct from the other rights forfeited upon his plea of guilty, and, upon consultation with counsel, defendant confirmed that he understood the significance of the rights he was waiving and executed a written waiver of his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015]; People v. Therrien, 134 A.D.3d 1231, 1232, 20 N.Y.S.3d 743 [2015] ). Moreover, he was specifically advised that his plea would effectuate a waiver of his right to consideration of any motions he had or could have made (see People v. Santalucia, 19 A.D.3d 806, 807, 797 N.Y.S.2d 590 [2005], lv. denied 5 N.Y.3d 856, 806 N.Y.S.2d 176, 840 N.E.2d 145 [2005] ). Similarly, the valid waiver precludes his claim that his sentence is harsh and excessive (see People v. Butler, 134 A.D.3d 1349, 1349–1350, 22 N.Y.S.3d 617 [2015], lvs. denied 27 N.Y.3d 963, –––N.Y.S.3d ––––, ––– N.E.3d –––– [Mar. 16, 2016]; People v. Balbuena, 123 A.D.3d 1384, 1386, 999 N.Y.S.2d 600 [2015] ).
Additionally, defendant's claim that he did not receive the effective assistance of counsel is precluded by his guilty plea, except to the extent that it impacts upon the voluntariness of his plea; however, this claim is unpreserved for our review inasmuch as he failed to make an appropriate postallocution motion (see People v. Clapper, 133 A.D.3d 1037, 1038, 20 N.Y.S.3d 452 [2015]; People v. Rucker, 133 A.D.3d 1035, 1035–1036, 19 N.Y.S.3d 200 [2015] ). Further, the narrow exception to the preservation requirement is not applicable inasmuch as defendant made no statements during his plea colloquy that would cast doubt on the voluntariness of his plea (see People v. Garry, 133 A.D.3d 1039, 1039–1040, 19 N.Y.S.3d 192 [2015] ). Therefore, we decline to disturb the judgment of conviction.
ORDERED that the judgment is affirmed.
McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ., concur.