People v. Kormos, 105467

• Decision Date: 05 March 2015
• Docket Number: 105467
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas F. KORMOS Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 1039
4 N.Y.S.3d 390
2015 N.Y. Slip Op. 01832

The PEOPLE of the State of New York, Respondent
v.
Thomas F. KORMOS Jr., Appellant.

105467

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

March 5, 2015.

4 N.Y.S.3d 391

Linda B. Johnson, West Sand Lake, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Peter N. DeLucia of counsel), for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH and CLARK, JJ.

Opinion

EGAN JR., J.

126 A.D.3d 1039

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered September 13, 2012, convicting defendant upon his plea of guilty of the crime of attempted assault in the first degree.

Defendant was charged in a five-count indictment with, among other things, attempted murder in the second degree. The charges stemmed from a March 2011 incident wherein defendant tied his wife to a bed, stuffed a sock in her throat and repeatedly beat her. Following the denial of defendant's motion to suppress certain evidence and statements made by him to the police, the matter proceeded to trial. During the course of jury selection, however, defendant elected to plead guilty-in full satisfaction of both the underlying and another indictment-to attempted assault in the first degree and waived his right to appeal. Defendant thereafter was sentenced as a second violent felony offender to the agreed-upon prison term of 10 years followed by five years of postrelease supervision. This appeal by defendant ensued.

We affirm. The record reveals that County Court sufficiently explained the separate nature of the waiver of the right to appeal; additionally, following discussions with counsel, defendant executed a written waiver to that effect and confirmed his understanding thereof. Accordingly, we are satisfied that defendant's

126 A.D.3d 1040

waiver of his right to appeal was knowing, intelligent and voluntary (see People v. Newton, 113 A.D.3d 1000, 1000–1001, 979 N.Y.S.2d 545 [2014], lvs. denied 23 N.Y.3d 1039, 993 N.Y.S.2d 253, 17 N.E.3d 508 [2014], 23 N.Y.3d 1041, 993 N.Y.S.2d 254, 17 N.E.3d 509 [2014] ). Notably, defendant's valid waiver precludes any challenge to County Court's suppression rulings (see

4 N.Y.S.3d 392

People v. Easter, 122 A.D.3d 1073, 1074, 995 N.Y.S.2d 852 [2014] ; People v. Guyette, 121 A.D.3d 1430, 1431, 995 N.Y.S.2d 395 [2014] ; People v. Lewis, 118 A.D.3d 1125, 1125, 987 N.Y.S.2d 250 [2014], lv. denied 24 N.Y.3d 1003, 997 N.Y.S.2d 121, 21 N.E.3d 573 [2014] ).

Although defendant's challenge to the voluntariness of his plea survives his waiver of the right to appeal, this issue is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Smith, 121 A.D.3d 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] ; People v. Waite, 120 A.D.3d 1446, 1447, 994 N.Y.S.2d 201 [2014] ). The narrow exception to the preservation requirement was not triggered here, as defendant did not make any statements during the plea colloquy that cast doubt upon his guilt or otherwise called into question the voluntariness of his plea (see People v. Banks, 122 A.D.3d 953, 953–954, 994 N.Y.S.2d 470 [2014] ; People v. Barnes, 119 A.D.3d 1290, 1291, 989 N.Y.S.2d 700 [2014] ), and we find defendant's claim of coercion to be unpersuasive.

As for defendant's ineffective assistance of counsel claim, ...