People v. Smith

• Decision Date: 26 August 2020
• Docket Number: Ind.No. 1636/17,2018–15169
• Citation: 127 N.Y.S.3d 324 (Mem),186 A.D.3d 873
• Parties: The PEOPLE, etc., Respondent, v. Lydell C. SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 873

127 N.Y.S.3d 324 (Mem)

The PEOPLE, etc., Respondent,

v.Lydell C. SMITH, Appellant.

2018–15169

Ind.No. 1636/17

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

Argued—February 28, 2020

August 26, 2020

Laurette D. Mulry, Riverhead, N.Y. (Felice B. Milani of counsel), for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Caren C. Manzello and Marion Tang of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Martin Efman, J.), rendered December 5, 2018, convicting him of gang assault in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, his waiver of his right to appeal was valid, as the record indicates that it was knowingly, voluntarily, and intelligently made (see People v. Thomas, 34 N.Y.3d 545, 144 N.E.3d 970 ; People v. Sanders, 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; People v. Torres, 179 A.D.3d 846, 113 N.Y.S.3d 905 ). The defendant's valid waiver of his right to appeal precludes appellate review of his challenge to the County Court's suppression determination (see People v. Sanders, 25 N.Y.3d at 342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Kidd, 100 A.D.3d 779, 779, 953 N.Y.S.2d 863 ), and of his contention that the court erred in failing to preclude certain evidence based on the People's failure to provide notice as required pursuant to CPL 710.30 (see generally People v. Ceparano, 96 A.D.3d 774, 775, 945 N.Y.S.2d 421 ).

To the extent the defendant challenges the voluntariness of his plea of guilty, his claim is unpreserved for appellate review, since he did not move to vacate his plea on the asserted ground prior to the imposition of sentence or otherwise raise the issue before the County Court (see People v. Ribeiro, 171 A.D.3d 1219, 1219, 96 N.Y.S.3d 875 ; People v. Anderson, 152 A.D.3d 616, 616–617, 60 N.Y.S.3d 184 ). In any event, the record demonstrates that the defendant's plea was knowingly, intelligently, and voluntarily entered (see People v. Ribeiro, 171 A.D.3d at 1219, 96 N.Y.S.3d 875 ; People v. Anderson, 152 A.D.3d at 617, 60 N.Y.S.3d 184 ).

MASTRO, J.P., MALTESE, BRATHWAITE NELSON and WOOTEN, JJ., concur.