Opinion
106325.
04-16-2015
The PEOPLE of the State of New York, Respondent, v. Brandon BURRITT, Appellant.
Danielle Neroni Reilly, Albany, for appellant. P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.
Opinion
DEVINE, J.Appeal from a judgment of the Supreme Court (Breslin, J.), rendered November 25, 2013 in Albany County, convicting defendant upon his plea of guilty of the crime of manslaughter in the first degree.
Defendant was charged in an indictment with murder in the second degree stemming from an incident in which he allegedly stabbed his roommate to death during an altercation that occurred in their apartment. After initially rejecting the People's plea offer, defendant subsequently agreed to plead guilty to a reduced charge of manslaughter in the first degree and waived his right to appeal. Supreme Court sentenced defendant to the agreed-upon term of 18 years in prison followed by five years of postrelease supervision. Defendant appeals. We affirm. Defendant claims that his guilty plea is invalid because Supreme Court failed to sufficiently inquire about the possibility that his usage of pain medications may have impacted his ability to comprehend the plea proceedings or apprise him that he was waiving possible defenses to the charge against him. Although defendant's assertion that his plea was not knowing, voluntary or intelligent is not precluded by his waiver of appeal (see People v. Guyette, 121 A.D.3d 1430, 1431, 995 N.Y.S.2d 395 [2014] ; People v. Osgood, 111 A.D.3d 1029, 1030, 974 N.Y.S.2d 662 [2013], lv. denied 22 N.Y.3d 1089, 981 N.Y.S.2d 675, 4 N.E.3d 977 [2014] ), such challenge was not preserved for our review as defendant failed to move to withdraw his guilty plea (see People v. Velazquez, 125 A.D.3d 1063, 1064, 3 N.Y.S.3d 193 [2015] ; People v. Johnson, 115 A.D.3d 1066, 1066, 981 N.Y.S.2d 488 [2014] ). “Nor did [defendant] make any statements during the plea colloquy that negated an essential element of the crime or cast doubt upon [his] guilt so as to invoke the exception to the preservation requirement” (People v. Vandemark, 117 A.D.3d 1339, 1340, 986 N.Y.S.2d 684 [2014], lv. denied 24 N.Y.3d 965, 996 N.Y.S.2d 224, 20 N.E.3d 1004 [2014] [citation omitted]; see People v. Vandemark, 117 A.D.3d 1339, 1339, 986 N.Y.S.2d 684 [2014] ; People v. Ferro, 101 A.D.3d 1243, 1244, 956 N.Y.S.2d 225 [2012], lv. denied 20 N.Y.3d 1098, 965 N.Y.S.2d 794, 988 N.E.2d 532 [2013] ).
Defendant further asserts that Supreme Court erred in denying his request for a Dunaway hearing, an assertion that is precluded by the waiver of the right to appeal (see People v. Easter, 122 A.D.3d 1073, 1074, 995 N.Y.S.2d 852 [2014], lv. denied 24 N.Y.3d 1219, 4 N.Y.S.3d 607, 28 N.E.3d 43 [2015] ; People v. Anderson, 63 A.D.3d 1191, 1193, 879 N.Y.S.2d 849 [2009], lv. denied 13 N.Y.3d 794, 887 N.Y.S.2d 543, 916 N.E.2d 438 [2009] ). Despite defendant's claim to the contrary, inasmuch as Supreme Court fully distinguished the waiver of the right to appeal from those rights that defendant would relinquish as part of the plea deal and defendant executed a written waiver of appeal before the court, the waiver of appeal is valid (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Musser, 106 A.D.3d 1334, 1335, 965 N.Y.S.2d 248 [2013], lv. denied 22 N.Y.3d 997, 981 N.Y.S.2d 3, 3 N.E.3d 1171 [2013] ). Finally, the valid waiver of appeal forecloses defendant's claim that the agreed-upon prison sentence is harsh and excessive (see People v. Dozier, 115 A.D.3d 1001, 1002, 981 N.Y.S.2d 626 [2014], lvs. denied 24 N.Y.3d 1082, 1083, 1 N.Y.S.3d 9, 10, 25 N.E.3d 346, 347 [2014] ; People v. Dyckman, 114 A.D.3d 994, 995, 979 N.Y.S.2d 872 [2014], lv. denied 23 N.Y.3d 1036, 993 N.Y.S.2d 250, 17 N.E.3d 505 [2014] ).ORDERED that the judgment is affirmed.
McCARTHY, J.P., EGAN JR. and CLARK, JJ., concur.