People v Damon Johnson

People v Johnson 2005 NY Slip Op 00029 [14 AD3d 730] January 6, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 16, 2005

The People of the State of New York, Respondent, v Damon Johnson, Also Known as Damon Lucky, Appellant.

—[*1]Peters, J. Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered January 30, 2002, convicting defendant upon his plea of guilty of the crime of attempted criminal possession of a controlled substance in the third degree.

On November 15, 2000, a police-controlled confidential informant allegedly purchased cocaine at an apartment located on Lincoln Avenue in the City of Schenectady, Schenectady County. Based on this evidence, the police applied for and received a search warrant, the execution of which resulted in the seizure of crack cocaine, marihuana and drug paraphernalia. Defendant, present at the apartment, was charged in a five-count indictment with various drug-related offenses. Defendant subsequently moved to suppress the evidence as obtained in violation of his 4th Amendment rights. Supreme Court denied the motion and defendant pleaded guilty to the crime of attempted criminal possession of a controlled substance in the third degree. In exchange, defendant signed a written waiver of his right to appeal and was sentenced as a second felony offender to 3 to 6 years in prison. Defendant now appeals challenging the denial of his suppression motion.

Inasmuch as the record reveals a knowing, voluntary and intelligent waiver of defendant's right to appeal, he may not now challenge the denial of his suppression motion (see People v Kemp, 94 NY2d 831, 833 [1999]; People v O'Donnell, 3 AD3d 599, 599 [2004], lv denied 2 NY3d 764 [2004]; People v Reid, 2 AD3d 1061, 1062 [2003], lv denied 3 NY3d 646 [2004]). Notably, here, the written waiver of the right to appeal specifically stated that defendant was precluded from appealing County Court's suppression ruling. Accordingly, the judgment is affirmed.

Cardona, P.J., Crew III, Carpinello and Rose, JJ., concur. Ordered that the judgment is affirmed.