Opinion
105648
11-20-2014
The PEOPLE of the State of New York, Respondent, v. Bernard EASTER, Appellant.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney (Steven Sharp of counsel), for respondent.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.
P. David Soares, District Attorney (Steven Sharp of counsel), for respondent.
Before: PETERS, P.J., STEIN, ROSE, EGAN JR. and CLARK, JJ.
Opinion
ROSE, J.Appeal from a judgment of the Supreme Court (Breslin, J.), rendered December 12, 2012 in Albany County, convicting defendant upon his plea of guilty of the crime of course of sexual conduct against a child in the first degree.
Defendant pleaded guilty to the class B felony of course of sexual conduct against a child in the first degree in satisfaction of a multicount indictment charging him with sex crimes against three victims, each under the age of 13. Pursuant to the plea agreement, defendant waived his right to appeal and Supreme Court agreed to impose a prison sentence of 11 years followed by 10 years of postrelease supervision. The court then sentenced him to the agreed-upon term and he now appeals.
Defendant's challenge to the voluntariness of his plea is not preserved for our review because the record does not reflect that he moved to withdraw the plea (see People v. Watson, 110 A.D.3d 1110, 1110, 972 N.Y.S.2d 352 [2013], lvs. denied 22 N.Y.3d 1157, 1160, 984 N.Y.S.2d 641, 644, 7 N.E.3d 1129, 1132 [2014] ; 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] ; People v. Williams, 101 A.D.3d 1174, 1174, 959 N.Y.S.2d 551 [2012] ). Even assuming that defendant's comment-made as he was about to be sworn in prior to entering the plea—that “I can't do this” triggers the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ), the record reflects that defendant thereafter consulted with counsel, Supreme Court thoroughly inquired as to whether he was being coerced and, based on his unequivocal answers, was satisfied that he was freely and voluntarily entering the plea (see People v. Howard, 119 A.D.3d 1090, 1090, 988 N.Y.S.2d 726 [2014], lv. denied 24 N.Y.3d 961 [2014] ; People v. Goodell, 104 A.D.3d 1026, 1026–1027, 960 N.Y.S.2d 744 [2013], lv. denied 22 N.Y.3d 1138, 983 N.Y.S.2d 497, 6 N.E.3d 616 [2014] ).
To the extent that defendant challenges the waiver of appeal, we find it valid. Supreme Court advised him of the rights he was forfeiting, clearly distinguished those rights from the rights given up as part of his plea and defendant signed a written waiver in open court acknowledging that he had consulted with counsel (see People v. Musser, 106 A.D.3d at 1335, 965 N.Y.S.2d 248 ; People v. Benson, 100 A.D.3d 1108, 1108, 953 N.Y.S.2d 380 [2012] ; People v. Moreno, 86 A.D.3d 863, 864, 927 N.Y.S.2d 487 [2011], lv. denied 17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029 [2011] ). 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 (see People v. Watson, 110 A.D.3d at 1111, 972 N.Y.S.2d 352 ; People v. Musser, 106 A.D.3d at 1335, 965 N.Y.S.2d 248 ; People v. Moreno, 86 A.D.3d at 864, 927 N.Y.S.2d 487 ). Defendant's remaining arguments have been considered and found to be unavailing.
ORDERED that the judgment is affirmed.
PETERS, P.J., STEIN, EGAN JR. and CLARK, JJ., concur.