Opinion
2020–07750 Ind. No. 1245/19
06-21-2023
The PEOPLE, etc., respondent, v. Johnathan J. WRIGHT, appellant.
Mark Diamond, Pound Ridge, NY, for appellant. Raymond A. Tierney, District Attorney, Riverhead, NY (Edward A. Bannan and Marion Tang of counsel), for respondent.
Mark Diamond, Pound Ridge, NY, for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Edward A. Bannan and Marion Tang of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., LARA J. GENOVESI, BARRY E. WARHIT, HELEN VOUTSINAS, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Suffolk County (Mark D. Cohen, J.), rendered December 19, 2019, convicting him of criminal possession of a controlled substance in the seventh degree and criminal use of drug paraphernalia in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that his plea was not knowing, voluntary, and intelligent. Since this issue would survive even a valid waiver of the right to appeal, we do not consider the validity of the defendant's 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. Banks, 207 A.D.3d 555, 555, 169 N.Y.S.3d 831 ; People v. Gomez, 137 A.D.3d 1161, 1162, 27 N.Y.S.3d 650 ). Nevertheless, this contention is unpreserved for appellate review since the defendant did not move to vacate his plea or otherwise raise this issue before the County Court (see CPL 470.05[2] ; People v. Peralta, 171 A.D.3d 948, 948, 95 N.Y.S.3d 887 ; People v. Kovalsky, 166 A.D.3d 900, 901, 85 N.Y.S.3d 889 ; People v. Ramos, 164 A.D.3d 922, 922, 82 N.Y.S.3d 103 ). Moreover, "the ‘rare case’ exception to the preservation requirement does not apply here because the defendant's allocution did not cast significant doubt on his guilt, negate an essential element of the crime, or call into question the voluntariness of his plea" ( People v. Ramos, 164 A.D.3d at 922–923, 82 N.Y.S.3d 103, quoting People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; see People v. Davis, 24 N.Y.3d 1012, 1013, 997 N.Y.S.2d 115, 21 N.E.3d 568 ; People v. Stone, 91 A.D.3d 977, 977, 937 N.Y.S.2d 630 ). In any event, the record establishes that the defendant's plea of guilty was knowing, voluntary, and intelligent (see People v. Goldstein, 12 N.Y.3d 295, 301, 879 N.Y.S.2d 814, 907 N.E.2d 692 ; People v. Ramos, 164 A.D.3d at 923, 82 N.Y.S.3d 103 ).
The defendant's challenge to the legality of the sentence also survives a waiver of the right to appeal (see People v. Lopez , 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Callahan , 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108 ), and may be raised notwithstanding a plea of guilty (see People v. Laureano , 87 N.Y.2d 640, 643, 642 N.Y.S.2d 150, 664 N.E.2d 1212 ). However, contrary to the defendant's contention, the County Court was authorized to impose consecutive sentences for the defendant's convictions of criminal possession of a controlled substance in the seventh degree and criminal use of drug paraphernalia in the second degree because those crimes involved separate and distinct acts (see Penal Law § 70.25[2] ; People v. Frazier , 16 N.Y.3d 36, 40–41, 916 N.Y.S.2d 574, 941 N.E.2d 1151 ; People v. Hodges , 199 A.D.3d 1015, 1017, 158 N.Y.S.3d 205 ).
The defendant's remaining contention is without merit.
BRATHWAITE NELSON, J.P., GENOVESI, WARHIT and VOUTSINAS, JJ., concur.