People v. Tucker
| Decision Date | 31 May 2018 |
| Docket Number | 107756 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Dumel TUCKER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
161 A.D.3d 1481
78 N.Y.S.3d 450
The PEOPLE of the State of New York, Respondent,
v.
Dumel TUCKER, Appellant.
107756
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: April 23, 2018
Decided and Entered: May 31, 2018
Craig S. Leeds, Albany, for appellant, and appellant pro se.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Aarons, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Egan Jr., J.
Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered
January 30, 2015, convicting defendant upon his plea of guilty of the crime of robbery in the first degree.
Defendant was charged in an indictment with multiple crimes arising from an incident in which he entered a restaurant, displayed a firearm and forcibly stole property from employees who were bound with duct tape. He pleaded guilty to robbery in the first degree in satisfaction of the indictment and waived his right to appeal, both orally and in writing. In accordance with the terms of the plea agreement, he was sentenced to eight years in prison and five years of postrelease supervision, to run consecutively to a sentence that he was serving on a prior robbery conviction. Defendant appeals.
Initially, we find defendant's appeal waiver to be valid. Notably, the record discloses that County Court explained the separate and distinct nature of the waiver and ascertained that defendant understood its consequences. Moreover, during the plea proceedings, defendant read and signed the written appeal waiver after conferring with counsel and reconfirmed his understanding to County Court. Thus, the record establishes that the waiver was knowing, voluntary and intelligent, thereby precluding defendant's challenge to the severity of the sentence (see People v. Taylor, 144 A.D.3d 1317, 1318, 41 N.Y.S.3d 587 [2016], lv denied 28 N.Y.3d 1151, 52 N.Y.S.3d 302, 74 N.E.3d 687 [2017] ; People v. Clapper, 133 A.D.3d 1037, 1038, 20 N.Y.S.3d 452 [2015], lv denied 27 N.Y.3d 995, 38 N.Y.S.3d 105, 59 N.E.3d 1217 [2016] ).
Defendant further contends that his guilty plea was not knowing, voluntary and intelligent because it was factually insufficient and was accepted by County Court without further inquiry, despite defendant's alleged protestations of innocence. Although this claim survives...
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