People v Smalls

People v Smalls 2015 NY Slip Op 02525 Decided on March 26, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 26, 2015
106668

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

DANTE L. SMALLS, Appellant.

Calendar Date: February 19, 2015
Before: Peters, P.J., McCarthy, Rose and Clark, JJ.

Robert N. Gregor, Lake George, for appellant.

Karen A. Heggen, District Attorney, Ballston Spa (Ann C. Sullivan of counsel), for respondent.

Peters, P.J.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Saratoga County (Scarano, J.), rendered March 5, 2014, convicting defendant upon his plea of guilty of the crime of tampering with physical evidence.

Following a traffic stop on March 5, 2013, defendant was arrested and later arraigned in Town Court on a felony complaint charging him with assault in the second degree and other crimes stemming from his conduct during and after the traffic stop. Defendant thereafter appeared with counsel in County Court, waived a preliminary hearing on the felony complaint, waived indictment and consented to be prosecuted by a superior court information charging him with tampering with physical evidence, in satisfaction of all charges. Pursuant to a plea agreement,

defendant entered a guilty plea to tampering with physical evidence, waived his right to appeal and was sentenced to six months in jail with five years of probation. He appeals.

We are unpersuaded by defendant's contention that his waiver of his statutory right to a preliminary hearing (see CPL 180.10 [2]) was not knowing or intelligent and rendered his guilty plea invalid. Assuming that this claim survives defendant's appeal waiver (see People v Bradshaw, 18 NY3d 257, 264-265 [2011]; People v Lopez, 6 NY3d 248, 256 [2006]), which he does not challenge, it is nonetheless unpreserved for our review inasmuch as he did not make an appropriate postallocution motion to withdraw his guilty plea (see People v Guyette, 121 AD3d 1430, 1431 [2014]).

In any event, defendant appeared and, pursuant to the plea terms, acknowledged that the "local court waiver" signed by his attorney waived his right to a preliminary hearing. He thereafter entered a guilty plea that was, in all respects, voluntary, knowing and intelligent (see [*2]People v Haffiz, 19 NY3d 883, 884 [2012]), "thereby effectively waiving his right to [a] hearing" (People v Gallagher, 34 AD3d 941, 942 [2006], lv denied 8 NY3d 880 [2007]; see People v Talback, 32 AD3d 559, 560 [2006], lv denied 7 NY3d 870 [2006]). Further, a waiver of this statutory right will be upheld where, as here, it was knowing, voluntary and intelligent (see People v Vargas, 88 NY2d 363, 375-376 [1996]; People v Spotford, 85 NY2d 593, 597-598 [1995]; People v Webb, 78 NY2d 335, 339-340 [1991]). Defendant's remaining claims have been reviewed and found to be lacking in merit.

McCarthy, Rose and Clark, JJ., concur.

ORDERED that the judgment is affirmed.