People v. Meyers

• Decision Date: 22 May 2019
• Docket Number: 2018–01279,Ind.No. 1157/16
• Citation: 98 N.Y.S.3d 879 (Mem),172 A.D.3d 1236
• Parties: The PEOPLE, etc., Respondent, v. Shirelle MEYERS, Appellant.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1236

98 N.Y.S.3d 879 (Mem)

The PEOPLE, etc., Respondent,

v.Shirelle MEYERS, Appellant.

2018–01279

Ind.No. 1157/16

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

Submitted—February 15, 2019

May 22, 2019

Mark Diamond, New York, NY, for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Sarah S. Rabinowitz of counsel; Matthew C. Frankel on the brief), for respondent.

WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Christopher G. Quinn, J.), rendered November 28, 2017, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant pleaded guilty to criminal possession of a controlled substance in the third degree ( Penal Law § 220.16[12] ). He was sentenced as a second felony drug offender with a prior violent felony conviction in accordance with the plea agreement.

Contrary to the defendant's contention, the record demonstrates that his waiver of the right to appeal was voluntary, knowing, and intelligent (see People v. Bryant, 28 N.Y.3d 1094, 45 N.Y.S.3d 335, 68 N.E.3d 60 ; People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).

The defendant contends that his plea of guilty was not voluntary, knowing, and intelligent because the Supreme Court failed to elicit a sufficient factual basis for the plea. Although a contention that a plea of guilty was not voluntary survives a valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Martinez, 159 A.D.3d 836, 69 N.Y.S.3d 820 ; People v. Broccoli, 152 A.D.3d 536, 54 N.Y.S.3d 875 ), the defendant failed to preserve his contention for appellate review, since he did not move to withdraw his plea on the ground that the Supreme Court failed to elicit a sufficient factual basis for the plea or otherwise raise the issue before the Supreme Court (see People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Sidique, 167 A.D.3d 665, 86 N.Y.S.3d 914 ; People v. Gomez, 114 A.D.3d 701, 979 N.Y.S.2d 828 ; People v. Konstantinides, 295 A.D.2d 537, 538, 744 N.Y.S.2d 447 ; People v. Lowry, 107 A.D.2d 716, 717, 484 N.Y.S.2d 71 ). Furthermore, the narrow exception to the preservation rule is inapplicable here, as nothing in the plea allocution cast doubt upon the defendant's guilt, negated an essential element of the crime, or called into question the voluntariness of the plea (see People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Sidique, 167 A.D.3d 665, 86 N.Y.S.3d 914 ; People v. Gomez, 114 A.D.3d at 701–702, 979 N.Y.S.2d 828 ). In any event, the defendant's contention is without merit (see Penal Law § 220.16[12] ; People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646 ; People v. Harris, 61 N.Y.2d 9, 17, 471 N.Y.S.2d 61, 459 N.E.2d 170 ).

The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the procedure used to adjudicate him a second felony drug offender was defective (see People v. Ovalles, 161 A.D.3d 1107, 1108, 73 N.Y.S.3d 894 ; People v. Thomas, 148 A.D.3d 734, 47 N.Y.S.3d 715 ; People v. Hicks, 134 A.D.3d 854, 19 N.Y.S.3d 907 ).

The defendant's contention that the sentence was illegal is not precluded by his valid appeal waiver (see People v. Nicholas, 8 A.D.3d 300...