Opinion
2018–05994 Ind. 185/17
11-12-2020
The PEOPLE, etc., Respondent, v. Steven WATSON, Appellant.
Del Atwell, East Hampton, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller of counsel), for respondent.
Del Atwell, East Hampton, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, N.Y. (Bridget Rahilly Steller of counsel), for respondent.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered April 13, 2018, 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.
Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 340–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ).
Although the defendant validly waived his right to appeal, his contention concerning the voluntariness of his plea of guilty survives his appeal waiver (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Rodriguez, 152 A.D.3d 800, 800, 60 N.Y.S.3d 191 ). However, the defendant's contention that his plea of guilty was not entered voluntarily due to his psychiatric condition is unpreserved for appellate review, as he did not move to withdraw his plea on this ground prior to the imposition of sentence (see CPL 470.05[2] ; People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Leasure, 177 A.D.3d 770, 772, 114 N.Y.S.3d 367 ). Moreover, the exception to the preservation requirement does not apply here, since the plea allocution did not cast significant doubt upon the defendant's guilt, negate an essential element of the crime, or call 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. Ospina, 175 A.D.3d 513, 514, 107 N.Y.S.3d 59 ; People v. Peralta, 171 A.D.3d 948, 948, 95 N.Y.S.3d 887 ). In any event, the defendant's contention is without merit, as the record as a whole affirmatively demonstrates that the defendant entered his plea knowingly, voluntarily, and intelligently (see People v. Ospina, 175 A.D.3d at 514, 107 N.Y.S.3d 59 ; People v. Narbonne, 131 A.D.3d 626, 627, 14 N.Y.S.3d 917 ).
The defendant's valid waiver of the right to appeal precludes appellate review of his contentions that the sentence imposed was excessive (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Ovalles, 161 A.D.3d 1107, 1108, 73 N.Y.S.3d 894 ), and that the procedure used to adjudicate him a second felony offender was defective (see People v. Ovalles, 161 A.D.3d at 1108, 73 N.Y.S.3d 894 ; People v. Thomas, 148 A.D.3d 734, 734, 47 N.Y.S.3d 715 ).
DILLON, J.P., AUSTIN, ROMAN, HINDS–RADIX and CHRISTOPHER, JJ., concur.