People v. Elting

191 A.D.3d 899

138 N.Y.S.3d 918 (Mem)

The PEOPLE, etc., respondent,

v.Daniel ELTING, appellant.

2019–00821

2019–02640

Ind. Nos. 2348/17, 532/18

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

February 17, 2021

Submitted—January 21, 2021

Laurette D. Mulry, Central Islip, N.Y. (Anju M. Alexander of counsel), for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Michael J. Brennan and Glenn Green of counsel), for respondent.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeals by the defendant from two judgments of the County Court, Suffolk County (Timothy P. Mazzei, J.), both rendered May 11, 2018, convicting him of attempted criminal possession of a controlled substance in the third degree under Indictment No. 2348/17, and attempted criminal sale of a controlled substance in the third degree under Indictment No. 532/18, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

The defendant contends that his pleas of guilty were not knowing, intelligent, and voluntary. A defendant's contention that his plea was not knowing, intelligent, and voluntary survives a valid appeal waiver (see People v. Bhuiyan, 181 A.D.3d 699, 700, 120 N.Y.S.3d 400 ; People v. Fontanet, 126 A.D.3d 723, 2 N.Y.S.3d 371 ). Consequently, we need not determine whether the purported appeal waiver was valid, notwithstanding the parties' arguments disputing that issue (see People v. Ward, 140 A.D.3d 903, 904, 32 N.Y.S.3d 648 ).

Contrary to the defendant's contentions, he was adequately advised of the constitutional rights he was forfeiting by pleading guilty (see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 ; People v. Flinn, 188 A.D.3d 1093, 132 N.Y.S.3d 660 ; People v. Anderson, 152 A.D.3d 616, 617, 60 N.Y.S.3d 184 ), and the record affirmatively demonstrates the defendant's understanding and waiver of these rights (see People v. Flinn, 188 A.D.3d 1093, 132 N.Y.S.3d 660 ; People v. Sherman, 177 A.D.3d 777, 779, 110 N.Y.S.3d 314 ).

RIVERA, J.P., MILLER, BRATHWAITE NELSON and WOOTEN, JJ., concur.