State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 5, 2015 105659
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
TYRONE D. COOPER,
Appellant.
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Calendar Date: January 14, 2015
Before: Peters, P.J., McCarthy, Garry and Rose, JJ.
__________
John P.M. Wappett, Public Defender, Lake George (Nellie R.
Halloran of counsel), for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee
B. Davenport of counsel), for respondent.
__________
Garry, J.
Appeal from a judgment of the County Court of Warren County
(Hall Jr., J.), rendered October 10, 2012, convicting defendant
upon his plea of guilty of the crime of criminal possession of a
controlled substance in the fourth degree.
Defendant was arrested and charged with crimes after police
discovered cocaine on his person. In full satisfaction of these
charges, he pleaded guilty to criminal possession of a controlled
substance in the fourth degree. As part of the plea agreement,
he waived his right to appeal. Defendant was thereafter
sentenced to the agreed-upon prison term of two years followed by
two years of postrelease supervision, together with an order
directing his enrollment in a shock incarceration program.
-2- 105659
Defendant appeals.
First, defendant contends that the evidence against him
should have been suppressed as the fruit of an illegal search.
However, such contention does not survive a knowing and
intelligent waiver of the right to appeal (see People v
Santalucia, 19 AD3d 806, 807 [2005], lv denied 5 NY3d 856 [2005];
People v Hodge, 4 AD3d 676, 677 [2004], lvs denied 2 NY3d 800,
807 [2004]). Defendant does not claim that his waiver was
invalid, and the record reveals that County Court explained the
nature and consequences of the waiver in detail, distinguished
this aspect of defendant's plea agreement from the other rights
forfeited by his guilty plea, and ascertained that defendant
understood these explanations (see People v Lopez, 6 NY3d 248,
256 [2006]; People v Smith, 121 AD3d 1131, 1131-1132 [2014], lv
denied ___ NY3d ___ [Jan. 13, 2015]). Accordingly, the waiver of
the right to appeal was valid, and defendant's challenge to the
legality of his arrest is foreclosed (see People v Hodge, 4 AD3d
at 677).
Defendant also contends that he was deprived of the
effective assistance of counsel by his attorney's failure to
request a suppression hearing. To the extent that this claim
implicates the voluntariness of his plea and thus survives his
waiver of the right to appeal (see People v Wicks, 83 AD3d 1223,
1225 [2011], lv denied 17 NY3d 810 [2011]), it is nevertheless
unpreserved for appellate review, as the record does not reveal
that defendant made an appropriate postallocution motion (see
People v Smith, 123 AD3d 1375, 1376 [2014]; People v White, 122
AD3d 1005, 1006 [2014]; People v Moses, 110 AD3d 1118, 1118-1119
[2013]). In any event, the failure to request a suppression
hearing, standing alone, does not establish that defense counsel
provided ineffective assistance (see People v Gentry, 73 AD3d
1383, 1384 [2010]; People v Jackson, 67 AD3d 1067, 1068 [2009],
lv denied 14 NY3d 801 [2010]). Here, nothing else in the record
casts doubt on the effectiveness of defense counsel, who, among
other things, secured an advantageous plea bargain for defendant.
Defendant affirmed during the plea colloquy that he was satisfied
with his counsel's representation, and if the issue had been
preserved, we would have concluded that he received meaningful
representation (see People v Aitken, 101 AD3d 1383, 1384 [2012],
-3- 105659
lv denied 21 NY3d 1040 [2013]; People v Flake, 95 AD3d 1371, 1372
[2012], lvs denied 19 NY3d 973, 974 [2012]; People v Gentry, 73
AD3d at 1384).
Peters, P.J., McCarthy and Rose, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court