                            State of New York
                     Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: February 9, 2017                     107130
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                       MEMORANDUM AND ORDER

ROBERT J. HALL,
                    Appellant.
________________________________


Calendar Date:     January 17, 2017

Before:     Peters, P.J., McCarthy, Egan Jr., Rose and Mulvey, JJ.

                               __________


         Salvatore Adamo, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.

                               __________


Mulvey, J.

      Appeal from a judgment of the County Court of Albany County
(Lynch, J.), rendered October 21, 2014, convicting defendant upon
his plea of guilty of the crime of promoting a sexual performance
by a child.

      Pursuant to a plea agreement, defendant waived indictment
and pleaded guilty to promoting a sexual performance by a child
as charged in a superior court information. The plea agreement
also satisfied other pending charges and included a waiver of
appeal. Consistent with that agreement,1 County Court imposed a


     1
        When the People recited the plea terms, they stated that
the promised sentence was 3½ years in prison, but, when County
                              -2-                107130

prison sentence of 2½ years with 10 years of postrelease
supervision. Defendant appeals.

      We affirm. Initially, contrary to defendant's claim, his
combined oral and written appeal waiver was knowing, voluntary
and intelligent (see People v Sanders, 25 NY3d 337, 339-341
[2015]; People v Lopez, 6 NY3d 248, 256 [2006]; People v Toledo,
144 AD3d 1332, 1332 [2016]). In that regard, defendant was
advised that an appeal waiver was a condition of the plea and of
its separate and distinct nature (see People v Lopez, 6 NY3d at
256). Defendant then executed a written waiver of appeal in open
court after consulting with his attorney, indicating that he
understood it (see id.; People v Toledo, 144 AD3d at 1333).
Given the valid appeal waiver, defendant's challenge to the
sentence as harsh and excessive is precluded (see People v Lopez,
6 NY3d at 256-257; People v Dickson-Eason, 143 AD3d 1013, 1014
[2016], lv denied 28 NY3d 1123 [2016]). While his challenge to
the plea as involuntary survives the appeal waiver, it was not
preserved by an appropriate postallocution motion, and defendant
made no statements during the plea colloquy that triggered the
exception to the preservation requirement (see People v Williams,
27 NY3d 212, 219-220 [2016]; People v Lopez, 71 NY2d 662, 666
[1988]; People v Austin, 141 AD3d 956, 957 [2016]). Were the
issue properly preserved, we would find that the plea was
knowing, voluntary and intelligent (see People v Fiumefreddo, 82
NY2d 536, 546-548 [1993]).

      Defendant next claims that he was denied the effective
assistance of counsel due to counsel's failure to move to
suppress his statements to police at his residence after the
execution of a search warrant following an undercover
investigation. While this claim survives his appeal waiver to
the extent that it implicates the voluntariness of his plea, it
is unpreserved for our review (see People v Lewis, 143 AD3d 1183,
1185 [2016]). "In any event, the failure to request a
suppression hearing, standing alone, does not establish that
defense counsel provided ineffective assistance" (People v


Court stated the terms during the allocution, it committed to a
prison term of 2½ years and imposed that promised sentence.
                                -3-                107130

Cooper, 126 AD3d 1046, 1047-1048 [2015] [citation omitted], lv
denied 26 NY3d 966 [2015]; see People v Rivera, 71 NY2d 705, 709
[1988]), "particularly in the absence of any basis upon which to
conclude that a defendant had a colorable claim or that counsel's
actions were not premised upon a legitimate strategy" (People v
Soprano, 135 AD3d 1243, 1243-1244 [2016] [internal quotation
marks and citation omitted], lv denied 27 NY3d 1007 [2016]). On
the limited record before us, defendant has not demonstrated that
he had a viable claim for suppression of his statement or that
counsel lacked a strategic reason for proceeding without a
pretrial motion to suppress. Further, defendant assured County
Court during the plea allocution that he had sufficient time to
speak with his attorney about the charges, any defenses and the
plea offer and that he was satisfied with counsel's
representation and defendant expressly waived any pretrial
hearings; counsel secured a favorable plea deal with reduced
sentencing that resolved other pending charges, a deal which may
not have been available after a suppression hearing. Thus, were
the issue preserved, we would find that the record does not
support defendant's claim that he was denied meaningful
representation (see People v Caban, 5 NY3d 143, 152 [2005];
People v Benevento, 91 NY2d 708, 712-714 [1998]; People v Cooper,
126 AD3d at 1048).2

        Peters, P.J., McCarthy, Egan Jr. and Rose, JJ., concur.




    2
        To the extent that defendant's claim relies upon matters
outside the record on appeal, they are more properly raised in a
motion to vacate pursuant to CPL article 440 (see People v
Perkins, 140 AD3d 1401, 1403 [2016], lv denied 28 NY3d 1126
[2016]).
                        -4-                  107130

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
