People v. Madison
| Decision Date | 21 September 2022 |
| Docket Number | 2018–03214,Ind. No. 155/17 |
| Citation | 208 A.D.3d 1253,174 N.Y.S.3d 267 (Mem) |
| Parties | The PEOPLE, etc., respondent, v. Kevin MADISON, appellant. |
| Court | New York Supreme Court — Appellate Division |
208 A.D.3d 1253
174 N.Y.S.3d 267 (Mem)
The PEOPLE, etc., respondent,
v.
Kevin MADISON, appellant.
2018–03214
Ind. No. 155/17
Supreme Court, Appellate Division, Second Department, New York.
Submitted—March 1, 2022
September 21, 2022
John A. Cirando, Syracuse, NY (Rebecca L. Konst of counsel), for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Anna K. Diehn of counsel), for respondent.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, LARA J. GENOVESI, WILLIAM G. FORD, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered February 16, 2018, convicting him of attempted criminal possession of a controlled substance in the fourth degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Dutchess County, for resentencing in accordance herewith.
The defendant was convicted of attempted criminal possession of a controlled substance in the fourth degree, upon his plea of guilty.
Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 ;
People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v. Stevens, 203 A.D.3d 958, 163 N.Y.S.3d 615 ).
A "defendant's contention that his plea was not knowing, voluntary, and intelligent due to the purported factual insufficiency of the plea allocution survives a valid appeal waiver" ( People v. Principato, 194 A.D.3d 851, 851, 147 N.Y.S.3d 135 ; see People v. Griffin, 167 A.D.3d 934, 88 N.Y.S.3d 348 ). Here, however, the defendant failed to preserve for appellate review his contention that his plea of guilty was not valid, as he did not move to withdraw his plea of guilty prior to the imposition of sentence (see People v. Devodier, 102 A.D.3d 884, 884, 958 N.Y.S.2d 220 ; People v. Andrea, 98 A.D.3d 627, 627, 949 N.Y.S.2d 654 ). In any event, the record shows that the defendant's plea of guilty was knowingly, intelligently, and voluntarily entered (see People v. Andrea, 98 A.D.3d at 627, 949 N.Y.S.2d 654 ; People v. Bookard, 68 A.D.3d 1128, 1129...
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