People v. Bellamy

254 A.D.2d 39, 681 N.Y.S.2d 484, 1998 N.Y. App. Div. LEXIS 10080

Opinion

Judgment, Supreme Court, New York County (Antonio Brandveen, J.), rendered March 3, 1997, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

The record indicates that defendant entered a knowing, intelligent and voluntary waiver of his right to appeal the conviction and determination of his suppression motions (People v Seaberg, 74 NY2d 1, 11), in exchange for a negotiated, favorable sentence of 5 to 10 years. The record also indicates that the resentencing procedure utilized herein was necessitated after it was discovered that the negotiated sentence was unlawful when imposed upon defendant’s original plea of guilty to attempted criminal possession of a controlled substance in the second degree. Since defendant was resentenced in accordance with the negotiated plea agreement, the resentencing proceeding, at which defendant was permitted to enter a guilty plea to a lesser included charge under the indictment in order to avail himself of the negotiated sentence, constituted a part of a single plea agreement and defendant’s waiver of his right to appeal was not invalidated by the resentencing procedure (see, People v Pratt, 210 AD2d 794, lv denied 86 NY2d 739; People v Carpenter, 176 AD2d 890). Accordingly, appellate review of defendant’s suppression claim is foreclosed. Concur — Sullivan, J. P., Milonas, Nardelli and Tom, JJ.