People v. Hicks

• Decision Date: 09 December 2015
• Citation: 19 N.Y.S.3d 907 (Mem),2015 N.Y. Slip Op. 09118,134 A.D.3d 854
• Parties: The PEOPLE, etc., respondent, v. Joseph HICKS, appellant.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 854
19 N.Y.S.3d 907 (Mem)
2015 N.Y. Slip Op. 09118

The PEOPLE, etc., respondent,
v.
Joseph HICKS, appellant.

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

Dec. 9, 2015.

Mark Diamond, New York, N.Y., for appellant.

19 N.Y.S.3d 908

Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel; Coleen A. Fortes on the brief), for respondent.

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Rockland County (Kelly, J.), rendered September 5, 2012, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the record demonstrates that he knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Sanders,25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344; People v. Bradshaw,18 N.Y.3d 257, 938 N.Y.S.2d 254, 961 N.E.2d 645; People v. Ramos,7 N.Y.3d 737, 819 N.Y.S.2d 853, 853 N.E.2d 222; People v. Lopez,6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Edmunson,109 A.D.3d 621, 970 N.Y.S.2d 635).

The defendant's valid appeal waiver precludes the review of his challenges to the factual sufficiency of his plea allocution (see People v. Hyland,123 A.D.3d 736, 737, 996 N.Y.S.2d 375), and to the hearing court's suppression determination (see People v. Dupree,130 A.D.3d 752, 753, 11 N.Y.S.3d 865; People v. Rance,122 A.D.3d 949, 995 N.Y.S.2d 680; People v. Sanchez,122 A.D.3d 778, 778–779, 995 N.Y.S.2d 609).

The defendant's contention that he was improperly adjudicated a second felony offender is also precluded by his valid appeal waiver, inasmuch as such challenge goes to the court's compliance with procedures to determine the defendant's predicate felony status, rather than the legality of the sentence itself (see People v. Carney,129 A.D.3d 1511, 10 N.Y.S.3d 377; compare People v. Samms,95 N.Y.2d 52, 710 N.Y.S.2d 310, 731 N.E.2d 1118, with People v. Bouyea,64 N.Y.2d 1140, 490 N.Y.S.2d 724, 480 N.E.2d 338).

RIVERA, J.P., CHAMBERS, SGROIand LaSALLE, JJ., concur.