People v. Cooper — 126 A.D.3d 1046

Majority

p. 1046

The People of the State of New York, Respondent, v Tyrone D. Cooper, Appellant.

[4 NYS3d 392]

Appeal from a judgment of the County Court of Warren County (Hall Jr., J.), rendered October 10, 2012, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.

Defendant was arrested and charged with crimes after police discovered cocaine on his person. In full satisfaction of these charges, he pleaded guilty to criminal possession of a controlled substance in the fourth degree. As part of the plea agreement, he waived his right to appeal. Defendant was thereafter sentenced to the agreed-upon prison term of two years followed by two years of postrelease supervision, together with an order directing his enrollment in a shock incarceration program.

Defendant appeals.

First, defendant contends that the evidence against him should have been suppressed as the fruit of an illegal search. However, such contention does not survive a knowing and intelligent waiver of the right to appeal (see People v Santalucia, 19 AD3d 806 , 807 [2005], lv denied 5 NY3d 856 [2005]; People v Hodge, 4 AD3d 676 , 677 [2004], lv denied 2 NY3d 800 [2004]). Defendant does not claim that his waiver was invalid, and the record reveals that County Court explained the nature and consequences of the waiver in detail, distinguished this aspect of defendant’s plea agreement from the other rights forfeited by his guilty plea, and ascertained that defendant understood these explanations (see People v Lopez, 6 NY3d 248 , 256 [2006]; People v Smith, 121 AD3d 1131 , 1131-1132 [2014], lv denied 24 NY3d 1123 [2015]). Accordingly, the waiver of the right to appeal was valid, and defendant’s challenge to the legality of his arrest is foreclosed (see People v Hodge, 4 AD3d at 677 ).

Defendant also contends that he was deprived of the effective assistance of counsel by his attorney’s failure to request a suppression hearing. To the extent that this claim implicates the voluntariness of his plea and thus survives his waiver of the right to appeal (see People v Wicks, 83 AD3d 1223 , 1225 [2011], lv denied 17 NY3d 810 [2011]), it is nevertheless unpreserved for appellate review, as the record does not reveal that defendant made an appropriate postallocution motion (see People v Smith, 123 AD3d 1375 , 1376 [2014]; People v White, 122 AD3d 1005 , 1006 [2014]; People v Moses, 110 AD3d 1118 , 1118-1119 [2013]). In any event, the failure to request a sup

p. 1048

pression hearing, standing alone, does not establish that defense counsel provided ineffective assistance (see People v Gentry, 73 AD3d 1383 , 1384 [2010]; People v Jackson, 67 AD3d 1067 , 1068 [2009], lv denied 14 NY3d 801 [2010]). Here, nothing else in the record casts doubt on the effectiveness of defense counsel, who, among other things, secured an advantageous plea bargain for defendant. Defendant affirmed during the plea colloquy that he was satisfied with his counsel’s representation, and if the issue had been preserved, we would have concluded that he received meaningful representation (see People v Aitken, 101 AD3d 1383 , 1384 [2012], lv denied 21 NY3d 1040 [2013]; People v Flake, 95 AD3d 1371 , 1372 [2012], lv denied 19 NY3d 973 [2012]; People v Gentry, 73 AD3d at 1384 ).

Peters, P.J., McCarthy and Rose, JJ., concur.

Ordered that the judgment is affirmed.

Cases cited

People v. Santalucia 19 AD3d 806 N.Y. App. Div. 2005-06-16 at 807 p. 1046
People v. Hodge 4 AD3d 676 N.Y. App. Div. 2004-02-26 at 677 p. 1046
People v. Lopez 6 NY3d 248 N.Y. 2006-02-16 at 256 p. 1046
People v. Smith 123 AD3d 1375 N.Y. App. Div. 2014-12-31 at 1376 p. 1046
People v. White 122 AD3d 1005 N.Y. App. Div. 2014-11-13 at 1006 p. 1046
People v. Moses 110 AD3d 1118 N.Y. App. Div. 2013-10-03 at 1118-1119 p. 1046
People v. Gentry 73 AD3d 1383 N.Y. App. Div. 2010-05-27 at 1384 p. 1048
People v. Jackson 67 AD3d 1067 N.Y. App. Div. 2009-11-05 at 1068 p. 1048
People v. Aitken 101 AD3d 1383 N.Y. App. Div. 2012-12-20 at 1384 p. 1048
People v. Flake 95 AD3d 1371 N.Y. App. Div. 2012-05-03 at 1372 p. 1048