People v. Johnson, 109122

• Decision Date: 07 March 2019
• Docket Number: 109122
• Citation: 95 N.Y.S.3d 467,170 A.D.3d 1274
• Parties: The PEOPLE of the State of New York, Respondent, v. Jerome JOHNSON, Appellant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1274

95 N.Y.S.3d 467

The PEOPLE of the State of New York, Respondent,

v.Jerome JOHNSON, Appellant.

109122

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

Calendar Date: January 10, 2019

Decided and Entered: March 7, 2019

Erin C. Morigerato, Albany, for appellant.

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

Before: Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Rumsey, J.

In November 2015, defendant was indicted and charged with one count of criminal possession of a weapon in the second degree. Following the denial of his suppression motion, defendant agreed to plead guilty to the reduced charge of attempted criminal possession of a weapon in the second degree with the understanding that he would be sentenced to a prison term of three years followed by three years of postrelease supervision. The plea agreement also included a waiver of defendant's right to appeal. Defendant thereafter pleaded guilty in conformity with the plea agreement and was sentenced to the agreed-upon term of imprisonment. Defendant appeals.

We affirm. Initially, we reject defendant's contention that his waiver of the right to appeal was invalid. County Court apprised defendant of the trial-related rights that are automatically forfeited by a guilty plea and then advised him that, although he would ordinarily retain the right to appeal, the plea agreement required a waiver of his right to appeal the denial of his suppression motion, his conviction and his sentence (see People v. Carter , 166 A.D.3d 1212, 1213, 88 N.Y.S.3d 285 [2018] ; People v. Hogabone , 49 A.D.3d 1027, 1028, 853 N.Y.S.2d 435 [2008], lv denied 10 N.Y.3d 935, 862 N.Y.S.2d 342, 892 N.E.2d 408 [2008] ). The record further reflects that defendant, after conferring with counsel, signed a written waiver in open court and, in response to County Court's questioning, confirmed that he understood its terms and agreed to be bound by it (see People v. Brown , 163 A.D.3d 1269, 1270, 82 N.Y.S.3d 218 [2018] ; People v. Turner , 158 A.D.3d 892, 892, 70 N.Y.S.3d 610 [2018] ; People v. McCaskill , 76 A.D.3d 751, 752, 905 N.Y.S.2d 721 [2010] ; People v. Romano , 45 A.D.3d 910, 914–915, 845 N.Y.S.2d 151 [2007], lv denied 10 N.Y.3d 770, 854 N.Y.S.2d 332, 883 N.E.2d 1267 [2008] ).

Although defendant's challenge to the voluntariness of his plea survives his valid appeal waiver, this issue is unpreserved for our review in the absence of an appropriate postallocution motion, and the narrow exception to the preservation requirement is inapplicable because defendant did not make any statements during the plea colloquy that cast doubt upon his guilt or called the voluntariness of his plea into question (see People v. Norton , 164 A.D.3d 1502, 1503, 82 N.Y.S.3d 665 [2018], lv denied 32 N.Y.3d 1114, 91 N.Y.S.3d 365, 115 N.E.3d 637 [2018] ). Although his ineffective...