People v. Appling

• Decision Date: 24 April 2012
• Citation: 94 A.D.3d 1135,942 N.Y.S.2d 617,2012 N.Y. Slip Op. 03210
• Parties: The PEOPLE, etc., respondent, v. Anthony APPLING, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03210

94 A.D.3d 1135

942 N.Y.S.2d 617

The PEOPLE, etc., respondent,

v.Anthony APPLING, appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 24, 2012.

Salvatore C. Adamo, New York, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel), for respondent.

REINALDO E. RIVERA, J.P., RANDALL T. ENG, CHERYL E. CHAMBERS, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Hinrichs, J.), rendered January 14, 2011, convicting him of criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the third degree (three counts), upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea of guilty was not knowingly, voluntarily, and intelligently made is unpreserved for appellate review, since he did not move to withdraw his plea on this ground prior to the imposition of sentence ( see CPL 220.60[3]; 470.05[2]; People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5; People v. Hayes, 91 A.D.3d 792, 936 N.Y.S.2d 902; People v. Kulmatycski, 83 A.D.3d 734, 735, 920 N.Y.S.2d 670; People v. Rusielewicz, 45 A.D.3d 704, 846 N.Y.S.2d 243). In any event, the record demonstrates that the defendant's plea was entered knowingly, voluntarily, and intelligently ( see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646; People v. Cancel, 92 A.D.3d 891, 938 N.Y.S.2d 814). The statements attributed to the defendant in the presentence report did not call into question the voluntariness of the plea and did not obligate the court to conduct a sua sponte inquiry into the basis for the plea ( see People v. Kelly, 50 A.D.3d 921, 854 N.Y.S.2d 674; People v. Jones, 41 A.D.3d 509, 510, 837 N.Y.S.2d 306; People v. Bonilla, 299 A.D.2d 934, 935, 750 N.Y.S.2d 224; People v. Pantoja, 281 A.D.2d 245, 246, 721 N.Y.S.2d 535).

The defendant's valid waiver of the right to appeal ( see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222; People v. Muniz, 91 N.Y.2d 570, 673 N.Y.S.2d 358, 696 N.E.2d 182) precludes appellate review of his claim that he was deprived of the effective assistance of counsel, since it does not relate to the voluntariness of his plea ( see People v. Duah, 91 A.D.3d 884, 936 N.Y.S.2d 907; People v. Williams, 84 A.D.3d 1417, 1418, 924 N.Y.S.2d 539; People v. Yarborough, 83 A.D.3d 875, 920 N.Y.S.2d 681), and of his claim that the sentence was excessive ( see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Crews, 92...