People v. DeLeon

204 A.D.3d 830

164 N.Y.S.3d 516 (Mem)

The PEOPLE, etc., respondent,

v.Sean DELEON, appellant.

2020–00622

Ind. No. 901/18

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

Submitted—March 18, 2022

April 13, 2022

Arza Feldman, Manhasset, NY, for appellant.

Miriam E. Rocah, District Attorney, White Plains, NY (Christine DiSalvo and William C. Milaccio of counsel), for respondent.

BETSY BARROS, J.P., ANGELA G. IANNACCI, CHERYL E. CHAMBERS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered November 22, 2019, convicting him criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that his plea of guilty was coerced by the Supreme Court because it was conditioned upon the court's insistence that he waive his right to appeal. Since this issue would survive a valid waiver of the right to appeal (see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ), we do not consider the validity of the defendant's appeal waiver (see People v. Murphy, 191 A.D.3d 1019, 1020, 139 N.Y.S.3d 547 ; People v. Dunkley, 177 A.D.3d 767, 767–768, 110 N.Y.S.3d 327 ).

However, the defendant failed to preserve for appellate review the issue of whether his plea of guilty was coerced because he did not move to withdraw his plea or otherwise raise this issue before the Supreme Court (see CPL 470.05[2] ; People v. Morales, 202 A.D.3d 997, 159 N.Y.S.3d 731 ; People v. Headley, 197 A.D.3d 1329, 151 N.Y.S.3d 905 ; People v. Watts, 192 A.D.3d 1048, 140 N.Y.S.3d 767 ). In any event, the defendant's contention is without merit. The record of the plea proceeding reveals that the defendant knowingly, voluntarily, and intelligently entered his plea of guilty (see People v. Brown, 14 N.Y.3d 113, 897 N.Y.S.2d 674, 924 N.E.2d 782 ; People v. Morales, 202 A.D.3d 997, 159 N.Y.S.3d 731 ; People v. Campbell, 197 A.D.3d 482, 483, 148 N.Y.S.3d 714 ).

BARROS, J.P., IANNACCI, CHAMBERS and DOWLING, JJ., concur.