People v. Stone

• Decision Date: 04 April 2013
• Citation: 105 A.D.3d 1094,962 N.Y.S.2d 789,2013 N.Y. Slip Op. 02294
• Parties: The PEOPLE of the State of New York, Respondent, v. David J. STONE, Appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 1094

962 N.Y.S.2d 789

2013 N.Y. Slip Op. 02294

The PEOPLE of the State of New York, Respondent,

v.David J. STONE, Appellant.

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

April 4, 2013.

James B. Lesperance Jr., Ballston Spa, for appellant.

James Sacket, District Attorney, Schoharie (Michael L. Breen of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, STEIN and SPAIN, JJ.

SPAIN, J.

Appeal from a judgment of the County Court of Schoharie County (Bartlett III, J.), rendered July 20, 2011, convicting defendantupon his plea of guilty of the crime of attempted criminal possession of a weapon in the second degree.

Following a traffic stop of defendant's vehicle, a State Trooper detected the odor of marihuana and defendant admitted to having a marihuana pipe in the vehicle. A subsequent search of the vehicle revealed a quantity of marihuana in the center console and, in the trunk, a bag containing a machine gun. Indicted on one count each of criminal possession of a weapon in the second and third degrees, defendant moved to suppress the evidence. After a hearing, County Court denied defendant's motion, concluding, among other findings, that police had probable cause to search his vehicle. Pursuant to a plea agreement and with the assistance of counsel, defendant thereafter entered a guilty plea to the reduced charge of attempted criminal possession of a weapon in the second degree and was sentenced, as an admitted second felony offender, to a prison term of three years and five years of postrelease supervision.¹ As part of the agreement, defendant waived his right to appeal. Defendant now appeals, and we affirm.

Defendant's sole challenge on appeal, to County Court's ruling denying suppression, is foreclosed by his valid waiver of appeal ( see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999];see also People v. Bradshaw, 18 N.Y.3d 257, 264–265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ). A review of the record discloses that, at the outset of the plea proceedings, the prosecutor recited the plea terms including the appeal waiver, which defense counsel confirmed, and the court proceeded to explain the trial-related rights that defendant would be foregoing by his guilty plea, and the consequences thereof, and elicited defendant's understanding of the agreement. The court separately explained the right to appeal, distinguished the appeal waiver from the other rights that defendant was foregoing as a result of his plea, ascertained that he had discussed it with counsel and understood that he was “giving up [his] right to appeal to the fullest extent ... that [the appeal] waiver is legally and constitutionally permitted,” including “complaining of any errors that may have occurred” to that point. Defendant, in open court, then signed a written document, which included a waiver of the right to appeal “all issues and matters” and expressly provided that he was “giv[ing] up [his] right to claim that the police did anything illegal ... or that any evidence obtained against [him] was done so illegally.”

While County Court's suppression decision was not explicitly referenced in the appeal waiver, which is “the better practice” ( People v. Kemp, 94 N.Y.2d at 833, 703 N.Y.S.2d 59, 724 N.E.2d 754), no “particular litany” was required by the court during its thorough allocution ( People v. Moissett, 76 N.Y.2d 909, 910, 563 N.Y.S.2d 43, 564 N.E.2d 653 [1990] ). Moreover, the colloquy...