Opinion
506 KA 16–00133
06-08-2018
The PEOPLE of the State of New York, Respondent, v. Sir Raven RODGERS, Defendant–Appellant.
KATHRYN B. FRIEDMAN, BUFFALO, FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
KATHRYN B. FRIEDMAN, BUFFALO, FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of robbery in the second degree ( Penal Law § 160.10 [3 ] ). At the outset, we conclude that defendant knowingly, voluntarily and intelligently waived his right to appeal, and that waiver, which specifically included a waiver of the right to challenge defendant's "conviction" and the "sentence," encompasses his contention that the sentence imposed is unduly harsh and severe (see People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Butler, 151 A.D.3d 1959, 1959, 55 N.Y.S.3d 569 [4th Dept. 2017], lv denied 30 N.Y.3d 948, 67 N.Y.S.3d 131, 89 N.E.3d 521 [2017] ). Although defendant's further contention that the sentence is illegal survives his 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 [1989] ; People v. Bussom, 125 A.D.3d 1331, 1331, 1 N.Y.S.3d 726 [4th Dept. 2015] ), we conclude that the sentence imposed by Supreme Court, i.e., eight years of incarceration with five years of postrelease supervision, is legal (see §§ 70.00[6]; 70.02[2][a]; [3][b]; 70.45[2][f] ).
Defendant further contends that the court erred in refusing to preclude and/or suppress an in-court identification of him. Defendant forfeited any preclusion argument based upon an allegedly defective CPL 710.30 notice by moving to suppress the identification (see People v. Graham, 107 A.D.3d 1421, 1422, 967 N.Y.S.2d 315 [4th Dept. 2013], affd 25 N.Y.3d 994, 10 N.Y.S.3d 172, 32 N.E.3d 387 [2015] ; People v. Kirkland, 89 N.Y.2d 903, 904–905, 653 N.Y.S.2d 256, 675 N.E.2d 1208 [1996] ), and by pleading guilty (see People v. La Bar, 16 A.D.3d 1084, 1084, 791 N.Y.S.2d 233 [4th Dept. 2005], lv denied 5 N.Y.3d 764, 801 N.Y.S.2d 259, 834 N.E.2d 1269 [2005] ). Moreover, because defendant pleaded guilty before the court issued a suppression ruling with respect to the in-court identification, he forfeited the right to raise the suppression issue on appeal (see People v. Fernandez, 67 N.Y.2d 686, 688, 499 N.Y.S.2d 919, 490 N.E.2d 838 [1986] ; People v. Russell, 128 A.D.3d 1383, 1384, 7 N.Y.S.3d 790 [4th Dept. 2015], lv. denied 25 N.Y.3d 1207, 16 N.Y.S.3d 529, 37 N.E.3d 1172 [2015] ; People v. Scaccia, 6 A.D.3d 1105, 1105, 776 N.Y.S.2d 420 [4th Dept, 2004], lv denied 3 N.Y.3d 681, 784 N.Y.S.2d 19, 817 N.E.2d 837 [2004] ).
Although defendant's contention that his guilty plea was not voluntarily, knowingly and intelligently entered survives the waiver of the right to appeal (see People v. McKay, 5 A.D.3d 1040, 1041, 773 N.Y.S.2d 923 [4th Dept. 2004], lv denied 2 N.Y.3d 803, 781 N.Y.S.2d 302, 814 N.E.2d 474 [2004] ), that contention is unpreserved for our review because defendant failed to move to withdraw his guilty plea or to vacate the judgment of conviction (see People v. Rojas, 147 A.D.3d 1535, 1536, 47 N.Y.S.3d 813 [4th Dept. 2017], lv denied 29 N.Y.3d 1036, 62 N.Y.S.3d 305, 84 N.E.3d 977 [2017] ; People v. Brown, 115 A.D.3d 1204, 1205, 982 N.Y.S.2d 255 [4th Dept. 2014], lv denied 23 N.Y.3d 1060, 994 N.Y.S.2d 319, 18 N.E.3d 1140 [2014] ). In any event, defendant's contention lacks merit, inasmuch as his assertion that he "did not have sufficient time to consider the plea offer ... [is] belied by his statements during the plea colloquy" ( People v. McNew, 117 A.D.3d 1491, 1492, 984 N.Y.S.2d 529 [4th Dept. 2014], lv denied 24 N.Y.3d 1003, 997 N.Y.S.2d 122, 21 N.E.3d 574 [2014] ).