People v. Mydosh

• Citation: 984 N.Y.S.2d 687,2014 N.Y. Slip Op. 03305,117 A.D.3d 1195
• Parties: The PEOPLE of the State of New York, Respondent, v. Alexander MYDOSH, Appellant.
• Decision Date: 08 May 2014
• Court: New York Supreme Court Appellate Division

117 A.D.3d 1195

984 N.Y.S.2d 687

2014 N.Y. Slip Op. 03305

The PEOPLE of the State of New York, Respondent,

v.Alexander MYDOSH, Appellant.

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

May 8, 2014.

Jane M. Bloom, Monticello, for appellant.

James R. Farrell, District Attorney, Monticello (Eamonn Neary of counsel), for respondent.

Before: PETERS, P.J., STEIN, ROSE and EGAN JR., JJ.

STEIN, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered June 12, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of a weapon in the third degree.

In satisfaction of a three-count indictment, defendant pleaded guilty to one count of criminal possession of a weapon in the third degree and waived his right to appeal, orally and in writing. He was thereafter sentenced, in accord with the plea agreement and as a second felony offender, to three years in prison to be followed by five years of postrelease supervision. Defendant now appeals, and we affirm.

Despite defendant's contention otherwise, we initially find that his appeal waiver was made knowingly, voluntarily and intelligently. In defendant's written waiver, which was executed in court, he acknowledged that he discussed the waiver with his counsel and that he was knowingly and voluntarily waiving the right to appeal his conviction and sentence ( see People v. Torres, 110 A.D.3d 1119, 1119, 972 N.Y.S.2d 738 [2013],lv. denied22 N.Y.3d 1044, 981 N.Y.S.2d 377, 4 N.E.3d 389 [2013];People v. Fallen, 106 A.D.3d 1118, 1119, 963 N.Y.S.2d 777 [2013],lv. denied22 N.Y.3d 1156 [2014] ). Additionally, the record demonstrates defendant's understanding that the waiver was separate and distinct from the rights he was relinquishing by pleading guilty ( see People v. Diaz, 72 A.D.3d 1349, 1350, 899 N.Y.S.2d 441 [2010],lv. denied15 N.Y.3d 773, 907 N.Y.S.2d 461, 933 N.E.2d 1054 [2010] ) and that he was thoroughly advised of its ramifications ( see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006];People v. Fling, 112 A.D.3d 1001, 1002, 975 N.Y.S.2d 923 [2013];People v. Henion, 110 A.D.3d 1349, 1350, 973 N.Y.S.2d 857 [2013],lv. denied22 N.Y.3d 1088, 981 N.Y.S.2d 674, 4 N.E.3d 976 [2014];People v. Foote, 102 A.D.3d 1056, 1057, 958 N.Y.S.2d 535 [2013],lvs. denied20 N.Y.3d 1098, 965 N.Y.S.2d 794, 988 N.E.2d 532,20 N.Y.3d 1102, 965 N.Y.S.2d 798, 988 N.E.2d 536 [2013] ).

Defendant also claims that the indictment was jurisdictionally defective. Although such claim survives both his guilty plea and appeal waiver, it is nonetheless without merit ( see People v. Martinez, 106 A.D.3d 1379, 1379, 966 N.Y.S.2d 562 [2013],lv. denied22 N.Y.3d 957, 977 N.Y.S.2d 188, 999 N.E.2d 553 [2013];People v. Kamburelis, 100 A.D.3d 1189, 1189–1190, 954 N.Y.S.2d 254 [2012] ). Finally, defendant's challenge to the factual sufficiency of his guilty plea is both precluded by his appeal waiver and unpreserved for our review due to his apparent failure to make an appropriate postallocution motion ( see People v. MacDonald, 113 A.D.3d 968, 968, 978 N.Y.S.2d 912 [2014];People v. Durham, 110 A.D.3d 1145, 1145, 973 N.Y.S.2d 425 [2013];People v. Sylvan, 107 A.D.3d 1044, 1045, 968 N.Y.S.2d 628 [2013],lv. denied22 N.Y.3d 1141, 983 N.Y.S.2d 500, 6 N.E.3d 619 [2014] ). Contrary to defendant's contentions, he said nothing during the plea colloquy that would bring this case within the narrow exception to the preservation rule ( see People v. MacDonald, 113 A.D.3d at 968;, 978 N.Y.S.2d 912People v. Sylvan, 107 A.D.3d at 1045, 968 N.Y.S.2d 628).

To the extent not specifically addressed, defendant's remaining claims have been considered and...