State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 16, 2015 105500
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v
MEMORANDUM AND ORDER
DAVID ORTIZ,
Appellant.
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Calendar Date: February 11, 2015
Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.
__________
James P. Milstein, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.
P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.
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Clark, J.
Appeal from a judgment of the Supreme Court (Breslin, J.),
rendered August 29, 2012 in Albany County, convicting defendant
upon his plea of guilty of the crime of attempted criminal
possession of a weapon in the second degree.
In December 2011, defendant was a passenger in a vehicle
stopped by the police for a traffic infraction. During a search
of the vehicle, a state trooper discovered a gun and ammunition.
Indicted on charges of criminal possession of a weapon in the
second degree and criminal possession of stolen property in the
fourth degree, defendant moved to suppress the evidence, a motion
that Supreme Court denied following a hearing. Subsequently, in
exchange for a promised determinate prison sentence of seven
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years followed by five years of postrelease supervision,
defendant pleaded guilty to attempted criminal possession of a
weapon in the second degree and waived his right to appeal on the
record, both verbally and in writing. Defendant now appeals.
Initially, we reject defendant's claim that his appeal
waiver was invalid. During the plea colloquy, Supreme Court
adequately explained the nature of the rights that defendant was
waiving and that the right to appeal is separate and distinct
from the rights automatically forfeited upon a plea of guilty
(see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v
Lopez, 6 NY3d 248, 256-257 [2006]). Defendant orally confirmed
that he understood the rights that he was relinquishing and that
those rights were separate and distinct from the rights forfeited
as a result of his guilty plea (cf. People v Bradshaw, 18 NY3d at
267). Defendant also signed a written waiver of appeal in open
court that both mirrored Supreme Court's colloquy and indicated
that defendant had been given sufficient time to discuss the
waiver with counsel. Therefore, contrary to defendant's
contentions on appeal, the court "carefully explained the appeal
waiver and distinguished it from the other rights that defendant
was forgoing as a consequence of his guilty plea, established
that defense counsel had discussed it with him . . . and did not
mislead him as to the . . . scope of the appeal waiver" (People v
Wolz, 112 AD3d 1150, 1152 [2013], lv denied 23 NY3d 1026 [2014];
see People v Ramos, 7 NY3d 737, 738 [2006]; People v Lopez, 6
NY3d at 257).
"Inasmuch as the appeal waiver is valid, it precludes
defendant's challenge to Supreme Court's denial of his
suppression motion, as well as his claim that his sentence was
harsh and excessive" (People v Easter, 122 AD3d 1073, 1074
[2014], lv denied 24 NY3d 1219 [2015]; see People v Grigger, 111
AD3d 974, 975 [2013], lv denied 23 NY3d 1037 [2014]; People v
Stone, 105 AD3d 1094, 1094-1095 [2013]). Turning to defendant's
claim that survives his appeal waiver, his argument that his plea
was involuntary due to the ineffective assistance of counsel is
unpreserved for our review because he failed to move to withdraw
his plea, and the narrow exception to the preservation
requirement is inapplicable (see People v Watson, 115 AD3d 1016,
1017 [2014], lv denied 24 NY3d 965 [2014]; People v Smith, 112
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AD3d 1232, 1232-1233 [2013], lv denied 22 NY3d 1203 [2014]).
McCarthy, J.P., Egan Jr. and Devine, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court