Opinion
2014-03-6
The PEOPLE of the State of New York, Respondent, v. Patrick DOZIER, Also Known as Wes, Also Known as Male, Also Known as Born, Appellant.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, GARRY and ROSE, JJ.
McCARTHY, J.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered December 4, 2009, convicting defendant upon his plea of guilty of the crimes of criminal sale of a controlled substance in the second degree and criminal possession of a controlled substance in the third degree.
Defendant was charged in a 14–count indictment with various crimes relating to, among other things, the sale and possession of cocaine and heroin. In satisfaction of the indictment, he pleaded guilty to criminal sale of a controlled substance in the second degree and criminal possession of a controlled substance in the third degree and waived his right to appeal his conviction and sentence. In accordance with the plea agreement, County Court sentenced defendant to 12 years in prison and five years of postrelease supervision on the sale count and a consecutive term of 6 1/2 years in prison and three years of postrelease supervision on the possession count. Defendant appeals.
Although defendant's challenge to the voluntariness of his plea survives his waiver of the right to appeal, that claim is not preserved for our review because the record does not reveal that he made an appropriate postallocution motion ( see People v. Bonville, 104 A.D.3d 1024, 1024, 960 N.Y.S.2d 743 [2013] ). While a guilty plea does not forfeit review of the denial of a suppression motion ( seeCPL 710.70[2]; People v. Issac, 107 A.D.3d 1055, 1056, 968 N.Y.S.2d 631 [2013] ), such review is foreclosed by defendant's valid waiver of the right to appeal ( see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999];People v. Stone, 105 A.D.3d 1094, 1094–1095, 962 N.Y.S.2d 789 [2013] ). The valid appeal waiver also precludes defendant's argument that the sentence was harsh and excessive ( see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];People v. Schanz, 82 A.D.3d 1417, 1417, 918 N.Y.S.2d 741 [2011],lv. denied17 N.Y.3d 800, 929 N.Y.S.2d 108, 952 N.E.2d 1103 [2011] ).
ORDERED that the judgment is affirmed. LAHTINEN, J.P., GARRY and ROSE, JJ., concur.