People v. Newton

• Decision Date: 30 January 2014
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Londell NEWTON, Also Known as Light, Appellant.

113 A.D.3d 1000
979 N.Y.S.2d 545
2014 N.Y. Slip Op. 00544

The PEOPLE of the State of New York, Respondent,
v.
Londell NEWTON, Also Known as Light, Appellant.

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

Jan. 30, 2014.

Aaron A. Louridas, Delmar, for appellant.

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

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

EGAN JR., J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered February 23, 2011, convicting defendant upon his plea of guilty of the crime of attempted criminal sale of a controlled substance in the third degree.

In satisfaction of a two-count indictment, defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree and waived his right to appeal. County Court thereafter sentenced defendant to five years in prison, to be followed by three years of postrelease supervision. This appeal ensued.

We affirm. The record reflects that County Court distinguished the right to appeal from the rights forfeited by the guilty plea and explained the nature of the right and the consequences of the waiver. Additionally, defendant signed a written appeal waiver in open court acknowledging that counsel had discussed the waiver with him and that he understood its ramifications. Accordingly, defendant validly waived the right to appeal his conviction and sentence ( see People v. Johnson, 106 A.D.3d 1331, 1332, 965 N.Y.S.2d 665 [2013], lvs. denied 21 N.Y.3d 1016, 971 N.Y.S.2d 499, 994 N.E.2d 395 [2013], 21 N.Y.3d 1019, 971 N.Y.S.2d 502, 994 N.E.2d 398 [2013]; People v. Lopez, 97 A.D.3d 853, 853, 948 N.Y.S.2d 174 [2012], lv. denied19 N.Y.3d 1027, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012] ).

Defendant's claim that his plea was not knowing, intelligent and voluntary is not preserved for our review absent evidence that defendant moved to withdraw his plea or vacate the judgment of conviction, and the narrow exception to the preservation requirement is not applicable, as defendant made no statements during the plea allocution that cast doubt upon his guilt or negated an essential element of the crime ( see People v. Williams, 101 A.D.3d 1174, 1174, 959 N.Y.S.2d 551 [2012]; People v. DeJesus, 96 A.D.3d 1295, 1295, 947 N.Y.S.2d 216 [2012] ). Defendant's assertion that he was denied the effective assistance of counsel also is unpreserved for

[979 N.Y.S.2d 546]

our review in the absence of an appropriate...