People v. Cooper, 105659

• Decision Date: 05 March 2015
• Docket Number: 105659
• Citation: 126 A.D.3d 1046,2015 N.Y. Slip Op. 01835,4 N.Y.S.3d 392
• Parties: The PEOPLE of the State of New York, Respondent, v. Tyrone D. COOPER, Appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 1046
4 N.Y.S.3d 392
2015 N.Y. Slip Op. 01835

The PEOPLE of the State of New York, Respondent
v.
Tyrone D. COOPER, Appellant.

105659

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

March 5, 2015.

4 N.Y.S.3d 393

John P.M. Wappett, Public Defender, Lake George (Nellie R. Halloran of counsel), for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.

Before: PETERS, P.J., McCARTHY, GARRY and ROSE, JJ.

Opinion

GARRY, J.

126 A.D.3d 1047

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered October 10, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.

Defendant was arrested and charged with crimes after police discovered cocaine on his person. In full satisfaction of these charges, he pleaded guilty to criminal possession of a controlled substance in the fourth degree. As part of the plea agreement, he waived his right to appeal. Defendant was thereafter sentenced to the agreed-upon prison term of two years followed by two years of postrelease supervision, together with an order directing his enrollment in a shock incarceration program. Defendant appeals.

First, defendant contends that the evidence against him should have been suppressed as the fruit of an illegal search. However, such contention does not survive a knowing and intelligent waiver of the right to appeal (see People v. Santalucia, 19 A.D.3d 806, 807, 797 N.Y.S.2d 590 [2005], lv. denied 5 N.Y.3d 856, 806 N.Y.S.2d 176, 840 N.E.2d 145 [2005] ; People v. Hodge, 4 A.D.3d 676, 677, 772 N.Y.S.2d 748 [2004], lvs. denied 2 N.Y.3d 800, 781 N.Y.S.2d 300, 814 N.E.2d 472 [2004], 2 N.Y.3d 807, 781 N.Y.S.2d 306, 814 N.E.2d 478 [2004] ). Defendant does not claim that his waiver was invalid, and the record reveals that County Court explained the nature and consequences of the waiver in detail, distinguished this aspect

4 N.Y.S.3d 394

of defendant's plea agreement from the other rights forfeited by his guilty plea, and ascertained that defendant understood these explanations (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Smith, 121 A.D.3d 1131, 1131–1132, 993 N.Y.S.2d 392 [2014], lv. denied 24 N.Y.3d 1123, 3 N.Y.S.3d 764, 27 N.E.3d 478 [2015] ). Accordingly, the waiver of the right to appeal was valid, and defendant's challenge to the legality of his arrest is foreclosed (see People v. Hodge, 4 A.D.3d at 677, 772 N.Y.S.2d 748 ).

Defendant also contends that he was deprived of the effective assistance of counsel by his attorney's failure to request a suppression hearing. To the extent that this claim implicates the voluntariness of his plea and thus survives his waiver of the right to appeal (see People v. Wicks, 83 A.D.3d 1223, 1225, 920 N.Y.S.2d 488 [2011], lv. denied 17 N.Y.3d 810, 929 N.Y.S.2d 570, 953 N.E.2d 808 [2011] ), it is nevertheless unpreserved for appellate review, as the record does not reveal that defendant made an appropriate postallocution motion (see People v. Smith, 123 A.D.3d 1375, 1376, 999 N.Y.S.2d 276 [2014] ; People v....