People v. Hall

• Decision Date: 09 February 2017
• Citation: 47 N.Y.S.3d 147,147 A.D.3d 1151
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert J. HALL, Appellant.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 1151
47 N.Y.S.3d 147

The PEOPLE of the State of New York, Respondent,
v.
Robert J. HALL, Appellant.

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

Feb. 9, 2017.

47 N.Y.S.3d 148

Salvatore Adamo, Albany, for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: PETERS, P.J., McCARTHY, EGAN Jr., ROSE and MULVEY, JJ.

MULVEY, J.

147 A.D.3d 1151

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered October 21, 2014, convicting defendant upon his plea of guilty of the crime of promoting a sexual performance by a child.

Pursuant to a plea agreement, defendant waived indictment and pleaded guilty to promoting a sexual performance by a child as charged in a superior court information. The plea agreement also satisfied other pending charges and included a waiver of appeal. Consistent with that agreement,¹ County Court imposed a prison sentence of 2 ½ years with 10 years of postrelease supervision. Defendant appeals.

We affirm. Initially, contrary to defendant's claim, his combined oral and written appeal waiver was knowing, voluntary and intelligent (see People v. Sanders, 25 N.Y.3d 337, 339–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Toledo, 144 A.D.3d 1332, 1332, 40 N.Y.S.3d 680 [2016] ). In that regard, defendant was advised that an appeal waiver was a condition of the plea and of its separate and distinct nature (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). Defendant then executed a written waiver of appeal in open court after consulting with his attorney, indicating that he understood it (see id. ; People v. Toledo, 144 A.D.3d at 1333, 40 N.Y.S.3d 680). Given the valid appeal waiver, defendant's challenge to

147 A.D.3d 1152

the sentence as harsh and excessive is precluded (see

47 N.Y.S.3d 149

People v. Lopez, 6 N.Y.3d at 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Dickson–Eason, 143 A.D.3d 1013, 1014, 38 N.Y.S.3d 637 [2016], lv. denied 28 N.Y.3d 1123, ––– N.Y.S.3d ––––, –––N.E.3d –––– [2016] ). While his challenge to the plea as involuntary survives the appeal waiver, it was not preserved by an appropriate postallocution motion, and defendant made no statements during the plea colloquy that triggered the exception to the preservation requirement (see People v. Williams, 27 N.Y.3d 212, 219–220, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Austin, 141 A.D.3d 956, 957, 35 N.Y.S.3d 580 [2016] ). Were the issue properly preserved, we would find that the plea was knowing, voluntary and intelligent (see People v. Fiumefreddo, 82 N.Y.2d 536, 546–548, 605 N.Y.S.2d 671, 626 N.E.2d 646 [1993] ).

Defendant next claims that he was denied the effective assistance of counsel due to counsel's failure to move to suppress his statements to police at his residence after the execution of a search warrant following an undercover investigation. While this claim survives his appeal waiver to the extent that it implicates the voluntariness of his plea, it is unpreserved for our review (see People v. Lewis, 143 A.D.3d...