Opinion
2018–01279 Ind.No. 1157/16
05-22-2019
The PEOPLE, etc., Respondent, v. Shirelle MEYERS, Appellant.
Mark Diamond, New York, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz of counsel; Matthew C. Frankel on the brief), for respondent.
Mark Diamond, New York, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz of counsel; Matthew C. Frankel on the brief), for respondent.
WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Nassau County (Christopher G. Quinn, J.), rendered November 28, 2017, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant pleaded guilty to criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[12] ). He was sentenced as a second felony drug offender with a prior violent felony conviction in accordance with the plea agreement.
Contrary to the defendant's contention, the record demonstrates that his waiver of the right to appeal was voluntary, knowing, and intelligent (see People v. Bryant, 28 N.Y.3d 1094, 45 N.Y.S.3d 335, 68 N.E.3d 60 ; People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
The defendant contends that his plea of guilty was not voluntary, knowing, and intelligent because the Supreme Court failed to elicit a sufficient factual basis for the plea. Although a contention that a plea of guilty was not voluntary survives a valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Martinez, 159 A.D.3d 836, 69 N.Y.S.3d 820 ; People v. Broccoli, 152 A.D.3d 536, 54 N.Y.S.3d 875 ), the defendant failed to preserve his contention for appellate review, since he did not move to withdraw his plea on the ground that the Supreme Court failed to elicit a sufficient factual basis for the plea or otherwise raise the issue before the Supreme Court (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Sidique, 167 A.D.3d 665, 86 N.Y.S.3d 914 ; People v. Gomez, 114 A.D.3d 701, 979 N.Y.S.2d 828 ; People v. Konstantinides, 295 A.D.2d 537, 538, 744 N.Y.S.2d 447 ; People v. Lowry, 107 A.D.2d 716, 717, 484 N.Y.S.2d 71 ). Furthermore, the narrow exception to the preservation rule is inapplicable here, as nothing in the plea allocution cast doubt upon the defendant's guilt, negated an essential element of the crime, or called into question the voluntariness of the plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Sidique, 167 A.D.3d 665, 86 N.Y.S.3d 914 ; People v. Gomez, 114 A.D.3d at 701–702, 979 N.Y.S.2d 828 ). In any event, the defendant's contention is without merit (see Penal Law § 220.16[12] ; People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; People v. Harris, 61 N.Y.2d 9, 17, 471 N.Y.S.2d 61, 459 N.E.2d 170 ).
The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the procedure used to adjudicate him a second felony drug offender was defective (see People v. Ovalles, 161 A.D.3d 1107, 1108, 73 N.Y.S.3d 894 ; People v. Thomas, 148 A.D.3d 734, 47 N.Y.S.3d 715 ; People v. Hicks, 134 A.D.3d 854, 19 N.Y.S.3d 907 ).
The defendant's contention that the sentence was illegal is not precluded by his valid appeal waiver (see People v. Nicholas, 8 A.D.3d 300, 777 N.Y.S.2d 321 ). Nevertheless, contrary to the defendant's contention, he was properly adjudicated a second felony drug offender with a prior violent felony conviction (see Penal Law § 70.70[4] ).
MASTRO, J.P., MALTESE, DUFFY and CONNOLLY, JJ., concur.