                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 26, 2015                     105323
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v
                                             MEMORANDUM AND ORDER
LASHON TURNER, Also Known as
   SHOTGUN, Also Known as
   SHOCK,
                    Appellant.
________________________________


Calendar Date:    February 19, 2015

Before:    Peters, P.J., McCarthy, Rose and Clark, JJ.

                              __________


     Erin C. Morigerato, Albany, for appellant.

      Eric T. Schneiderman, Attorney General, New York City
(Nikki Kowalski of counsel), for respondent.

                              __________


Rose, J.

      Appeal from a judgment of the Supreme Court (Breslin, J.),
rendered August 8, 2012 in Albany County, convicting defendant
upon his plea of the crime of attempted criminal possession of a
controlled substance in the third degree.

      Defendant was charged in a sealed indictment with one count
each of attempted criminal possession of a controlled substance
in the third degree and conspiracy in the second degree after
allegedly acting in concert with numerous codefendants as part of
a large-scale cocaine distribution network. During trial, he
pleaded guilty to attempted criminal possession of a controlled
substance in the third degree in full satisfaction of the charges
                              -2-                105323

against him, and waived his right to appeal. Supreme Court
thereafter sentenced him, as a second felony offender, to 4½
years in prison to be followed by three years of postrelease
supervision. Defendant appeals.

      We affirm. Initially, we reject defendant's challenge to
the validity of his waiver of the right to appeal. Supreme Court
adequately explained the nature of the right and distinguished it
from those rights that are automatically forfeited upon a plea of
guilty. Moreover, defendant signed a written waiver in open
court after conferring with counsel that further clarified the
scope of the right, and the court confirmed that he understood
the waiver. Under these circumstances, we conclude that
defendant knowingly, intelligently and voluntarily waived his
right to appeal his conviction and sentence, thereby precluding
his challenge to the severity of his sentence (see People v
Bradshaw, 18 NY3d 257, 264-267 [2011]; People v Van Clief, 122
AD3d 1062, 1062-1063 [2014], lv denied ___ NY3d ___ [Feb. 18,
2015]).

      Turning to the remaining argument, defendant's assertion
that he received ineffective assistance of counsel impacts the
voluntariness of his plea and, therefore, survives his waiver of
the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]).
Nevertheless, his assertion is unpreserved due to his failure to
raise his challenge in the appropriate postallocution motion (see
People v Guyette, 121 AD3d 1430, 1432 [2014]). In any event,
defendant's claim that counsel was ineffective for failing to
object to the indictment as jurisdictionally defective must fail
inasmuch as counsel had no duty to make a patently meritless
motion (see People v Caban, 5 NY3d 143, 152 [2005]; People v
Nguyen, 90 AD3d 1330, 1332-1333 [2011], lv denied 18 NY3d 960
[2012]).

     Peters, P.J., McCarthy and Clark, JJ., concur.
                        -3-                  105323

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
