People v. Flake
| Court | New York Supreme Court Appellate Division |
| Writing for the Court | KAVANAGH |
| Citation | 943 N.Y.S.2d 307,95 A.D.3d 1371,2012 N.Y. Slip Op. 03481 |
| Decision Date | 03 May 2012 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Justin FLAKE, Also Known as Ice, Appellant. |
2012 N.Y. Slip Op. 03481
943 N.Y.S.2d 307
95 A.D.3d 1371
The PEOPLE of the State of New York, Respondent,
v.
Justin FLAKE, Also Known as Ice, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
May 3, 2012.
[943 N.Y.S.2d 307]
Kelly M. Monroe, Albany, for appellant.
[943 N.Y.S.2d 308]
Kevin C. Kortright, District Attorney, Fort Edward (Katherine G. Henley of counsel), for respondent.
Before: PETERS, P.J., MALONE JR., KAVANAGH, STEIN and EGAN JR., JJ.
KAVANAGH, J.
Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered January 14, 2011, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
In July 2010, defendant was charged by indictment with two counts of criminal sale of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the third degree. The charges stemmed from allegations that defendant twice sold cocaine to a confidential informant. After conducting a Wade hearing, County Court concluded that the identification procedure employed by the police in securing the confidential informant's identification of defendant was not unduly suggestive and denied his motion to suppress. Thereafter, defendant entered a guilty plea to one count of criminal sale of a controlled substance in the third degree, waived his right to appeal, and was sentenced as a second felony offender—in accord with the plea agreement—to 4 1/2 years in prison, plus two years of postrelease supervision. Defendant now appeals, claiming that County Court improperly denied his motion to suppress, his plea allocution was factually insufficient, he was denied the effective assistance of counsel and the sentence imposed was harsh and excessive.
Defendant's challenge to County Court's denial of his motion to suppress is precluded by his waiver of his right to appeal 1 ( see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999]; People v. Spruill, 90 A.D.3d 1242, 1243, 934 N.Y.S.2d 355 [2011]; People v. Ballard, 88 A.D.3d 1025, 1026, 930 N.Y.S.2d 494 [2011], lv. denied 18 N.Y.3d 955, 944 N.Y.S.2d 483, 967 N.E.2d 708 [2012] ). Defendant's challenge to the factual sufficiency of his guilty plea is also barred by the appeal waiver and, moreover, is unpreserved as there is no indication on this record that he moved to withdraw his plea or vacate the judgment of conviction ( see People v. Taylor, ...
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...record that defendant moved to withdraw his plea or vacate the underlying judgment of conviction ( see [953 N.Y.S.2d 382]People v. Flake, 95 A.D.3d 1371, 1372, 943 N.Y.S.2d 307 [2012],lv. denied19 N.Y.3d 973, 950 N.Y.S.2d 356, 973 N.E.2d 766 [2012];People v. Richardson, 83 A.D.3d 1290, 1291......
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...we find no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice ( see [943 N.Y.S.2d 307] People v. Smurphat, 91 A.D.3d 980, 981, 936 N.Y.S.2d 356 [2012]; People v. Smith, 87 A.D.3d 1203, 1203, 929 N.Y.S.2d 772 [2011] ). ORDERED......
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People v. Walton
...[2010] ). Were we to reach the issue, we would find that defendant was provided with meaningful representation ( see People v. Flake, 95 A.D.3d 1371, 1372, 943 N.Y.S.2d 307 [2012],lvs. denied19 N.Y.3d 973, 974, 950 N.Y.S.2d 356, 357, 973 N.E.2d 766, 767 [2012];People v. Shurock, 83 A.D.3d 1......
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People v. Cooper, 105659
...101 A.D.3d 1383, 1384, 955 N.Y.S.2d 534 [2012], lv. denied 21 N.Y.3d 1040, 972 N.Y.S.2d 537, 995 N.E.2d 853 [2013] ; People v. Flake, 95 A.D.3d 1371, 1372, 943 N.Y.S.2d 307 [2012], lvs. denied 19 N.Y.3d 973, 950 N.Y.S.2d 356, 973 N.E.2d 766 [2012], 19 N.Y.3d 974, 950 N.Y.S.2d 357, 973 N.E.2......
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People v. Benson
...record that defendant moved to withdraw his plea or vacate the underlying judgment of conviction ( see [953 N.Y.S.2d 382]People v. Flake, 95 A.D.3d 1371, 1372, 943 N.Y.S.2d 307 [2012],lv. denied19 N.Y.3d 973, 950 N.Y.S.2d 356, 973 N.E.2d 766 [2012];People v. Richardson, 83 A.D.3d 1290, 1291......
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People v. McQuality
...we find no abuse of discretion or extraordinary circumstances warranting a reduction of the sentence in the interest of justice ( see [943 N.Y.S.2d 307] People v. Smurphat, 91 A.D.3d 980, 981, 936 N.Y.S.2d 356 [2012]; People v. Smith, 87 A.D.3d 1203, 1203, 929 N.Y.S.2d 772 [2011] ). ORDERED......
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People v. Walton
...[2010] ). Were we to reach the issue, we would find that defendant was provided with meaningful representation ( see People v. Flake, 95 A.D.3d 1371, 1372, 943 N.Y.S.2d 307 [2012],lvs. denied19 N.Y.3d 973, 974, 950 N.Y.S.2d 356, 357, 973 N.E.2d 766, 767 [2012];People v. Shurock, 83 A.D.3d 1......
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People v. Cooper, 105659
...101 A.D.3d 1383, 1384, 955 N.Y.S.2d 534 [2012], lv. denied 21 N.Y.3d 1040, 972 N.Y.S.2d 537, 995 N.E.2d 853 [2013] ; People v. Flake, 95 A.D.3d 1371, 1372, 943 N.Y.S.2d 307 [2012], lvs. denied 19 N.Y.3d 973, 950 N.Y.S.2d 356, 973 N.E.2d 766 [2012], 19 N.Y.3d 974, 950 N.Y.S.2d 357, 973 N.E.2......