People v. Sylvan

• Decision Date: 06 June 2013
• Citation: 107 A.D.3d 1044,2013 N.Y. Slip Op. 04052,968 N.Y.S.2d 628
• Parties: The PEOPLE of the State of New York, Respondent, v. Colby SYLVAN, Appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1044
968 N.Y.S.2d 628
2013 N.Y. Slip Op. 04052

The PEOPLE of the State of New York, Respondent,
v.
Colby SYLVAN, Appellant.

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

June 6, 2013.

[968 N.Y.S.2d 629]

James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

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

EGAN JR., J.

[107 A.D.3d 1044]Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered May 16, 2011, convicting defendant upon his plea of guilty of the crime of attempted robbery in the first degree.

[107 A.D.3d 1045]Following jury selection, and in satisfaction of an eight-count indictment, defendant pleaded guilty to attempted robbery in the first degree, waived his right to appeal his conviction and sentence and

[968 N.Y.S.2d 630]

thereafter was sentenced, as a second felony offender, to 13 years in prison followed by five years of postrelease supervision. Defendant now appeals contending, among other things, that the victims' pretrial identification of him should have been suppressed as unduly suggestive.

Initially, to the extent that defendant's brief may be read as challenging the validity of his waiver of the right to appeal, we find defendant's argument to be unpersuasive. The plea colloquy reflects that County Court explained the significance of the appeal waiver to defendant, who professed his understanding thereof and thereafter executed a written waiver of the right to appeal. Under such circumstances, we find defendant's waiver to be knowing, intelligent and voluntary ( see People v. Carbone, 101 A.D.3d 1232, 1233, 956 N.Y.S.2d 221 [2012] ).

Defendant's remaining arguments do not warrant extended discussion. The valid waiver of appeal precludes defendant's challenge to County Court's denial of his motion to suppress certain identification testimony ( see People v. Mattison, 94 A.D.3d 1157, 1158, 941 N.Y.S.2d 528 [2012];People v. Spruill, 90 A.D.3d 1242, 1243, 934 N.Y.S.2d 355 [2011],lv. denied18 N.Y.3d 998, 945 N.Y.S.2d 653, 968 N.E.2d 1009 [2012];People v. Moreno, 86 A.D.3d 863, 864, 927 N.Y.S.2d 487 [2011],lv. denied17 N.Y.3d 954, 936 N.Y.S.2d 80, 959 N.E.2d 1029 [2011] ), as well as his claim that the sentence imposed was harsh and excessive ( see People v. Mattison, 94 A.D.3d at 1158, 941 N.Y.S.2d 528;People v. Moreno, 86 A.D.3d at 864, 927 N.Y.S.2d 487). Any argument regarding the factual sufficiency of the underlying plea also is foreclosed by defendant's valid waiver and, further, is unpreserved for our review absent evidence that defendant moved to withdraw his plea or vacate the judgment of conviction ( see People v. Leone, 101 A.D.3d 1352, 1352, 956 N.Y.S.2d 289 [2012],lv. denied21 N.Y.3d 913, 966 N.Y.S.2d 364, 988 N.E.2d 893 [Apr. 30, 2013];People v. Benson, 100 A.D.3d 1108, 1108, 953 N.Y.S.2d 380 [2012] ). Although defendant's challenge to the voluntariness of his plea survives the foregoing waiver, it, too, is unpreserved for our review in the absence of an appropriate postallocution motion ( see People v. Revette, 102 A.D.3d 1065, 1065–1066, 958 N.Y.S.2d 805 [2013];People v. Martinez–Velazquez, 89 A.D.3d 1318, 1319, 932...