People v. Simmons, 105206

• Decision Date: 11 June 2015
• Docket Number: 105206
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael J. SIMMONS, Appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1200

9 N.Y.S.3d 892 (Mem)

2015 N.Y. Slip Op. 04878

The PEOPLE of the State of New York, Respondent

v.Michael J. SIMMONS, Appellant.

105206

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

June 11, 2015.

Albert F. Lawrence, Greenfield Center, for appellant.

Nicole M. Duve, Special Prosecutor, Ogdensburg, for respondent.

Before: PETERS, P.J., LAHTINEN, McCARTHY and ROSE, JJ.

Opinion

ROSE, J.

Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered January 9, 2012, convicting defendant upon his plea of guilty of the crime of attempted murder in the second degree.

Defendant was charged in a nine-count indictment with attempted murder in the first and second degrees, rape in the first degree, unlawful imprisonment in the first degree and assault in the first degree (four counts) and second degree after he brutally attacked his wife. After a suppression hearing, County Court determined that defendant's statements to law enforcement following the attack were admissible. Defendant ultimately pleaded guilty to attempted murder in the second degree in full satisfaction of the indictment and waived his right to appeal, both orally and in writing. County Court then sentenced defendant, in accordance with the plea agreement, to a prison term of 15 years, to be followed by five years of postrelease supervision. He now appeals.

Initially, defendant argues that County Court's suppression ruling was erroneous, and that such an argument may be made notwithstanding his waiver of appeal. We cannot agree. Defendant's general waiver of appeal from “any aspect of this matter” precludes his challenge to the suppression ruling (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ; People v. Stone, 105 A.D.3d 1094, 1095, 962 N.Y.S.2d 789 [2013] ; People v. Colon, 101 A.D.3d 1161, 1161–1162, 955 N.Y.S.2d 434 [2012], lv. denied 21 N.Y.3d 1003, 971 N.Y.S.2d 254, 993 N.E.2d 1276 [2013] ).¹ To the extent that defendant's claim that he was denied the effective assistance of counsel survives his appeal waiver, he failed to preserve it with 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. Boone, 101 A.D.3d 1358, 1359, 956 N.Y.S.2d 310 [2012], lv. denied 20 N.Y.3d 1096, 965 N.Y.S.2d 792, 988 N.E.2d 530 [2013] ). Finally, defendant's valid appeal waiver also precludes his challenge to the severity of the sentence (see People v. Dale, 115 A.D.3d 1002, 1007, 981 N.Y.S.2d 821 [2014] ; People v. Colon, 101 A.D.3d at 1162, 955 N.Y.S.2d 434 ; People v. Griffin, 100 A.D.3d 1153, 1154, 953 N.Y.S.2d 402 [2012], lv. denied 20 N.Y.3d 1011, 960 N.Y.S.2d 354, 984 N.E.2d 329 [2013] ).

ORDERED that the judgment is affirmed.

PETERS, P.J., LAHTINEN and McCARTHY, JJ., concur.

1 Although not raised by defendant, we agree with the People that his appeal waiver was valid (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Burritt, 127 A.D.3d 1433, 1434, 6 N.Y.S.3d 806 [2015] ; People v. Balbuena, 123 A.D.3d 1384, 1385, 999...