State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 16, 2015 106325 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

BRANDON BURRITT,

Appellant.

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Calendar Date: February 11, 2015

Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

__________

Danielle Neroni Reilly, Albany, for appellant.

P. David Soares, District Attorney, Albany (Brittany L.

Grome of counsel), for respondent.

__________

Devine, J.

Appeal from a judgment of the Supreme Court (Breslin, J.),

rendered November 25, 2013 in Albany County, convicting defendant

upon his plea of guilty of the crime of manslaughter in the first

degree. 

Defendant was charged in an indictment with murder in the

second degree stemming from an incident in which he allegedly

stabbed his roommate to death during an altercation that occurred

in their apartment. After initially rejecting the People's plea

offer, defendant subsequently agreed to plead guilty to a reduced

charge of manslaughter in the first degree and waived his right

to appeal. Supreme Court sentenced defendant to the agreed-upon

term of 18 years in prison followed by five years of postrelease

supervision. Defendant appeals.
-2- 106325 

We affirm. Defendant claims that his guilty plea is

invalid because Supreme Court failed to sufficiently inquire

about the possibility that his usage of pain medications may have

impacted his ability to comprehend the plea proceedings or

apprise him that he was waiving possible defenses to the charge

against him. Although defendant's assertion that his plea was

not knowing, voluntary or intelligent is not precluded by his

waiver of appeal (see People v Guyette, 121 AD3d 1430, 1431

[2014]; People v Osgood, 111 AD3d 1029, 1030 [2013], lv denied 22

NY3d 1089 [2014]), such challenge was not preserved for our

review as defendant failed to move to withdraw his guilty plea

(see People v Velazquez, 125 AD3d 1063, 1064 [2015]; People v

Johnson, 115 AD3d 1066, 1066 [2014]). "Nor did [defendant] make

any statements during the plea colloquy that negated an essential

element of the crime or cast doubt upon [his] guilt so as to

invoke the exception to the preservation requirement" (People v

Vandemark, 117 AD3d 1339, 1340 [2014], lv denied 24 NY3d 965

[2014] [citation omitted]; see People v Griffin, 117 AD3d 1339,

1339 [2014]; People v Ferro, 101 AD3d 1243, 1244 [2012], lv

denied 20 NY3d 1098 [2013]). 

Defendant further asserts that Supreme Court erred in

denying his request for a Dunaway hearing, an assertion that is

precluded by the waiver of the right to appeal (see People v

Easter, 122 AD3d 1073, 1074 [2014], lv denied 24 NY3d 1219

[2015]; People v Anderson, 63 AD3d 1191, 1193 [2009], lv denied

13 NY3d 794 [2009]). Despite defendant's claim to the contrary,

inasmuch as Supreme Court fully distinguished the waiver of the

right to appeal from those rights that defendant would relinquish

as part of the plea deal and defendant executed a written waiver

of appeal before the court, the waiver of appeal is valid (see

People v Lopez, 6 NY3d 248, 256 [2006]; People v Musser, 106 AD3d

1334, 1335 [2013], lv denied 22 NY3d 997 [2013]). Finally, the

valid waiver of appeal forecloses defendant's claim that the

agreed-upon prison sentence is harsh and excessive (see People v

Dozier, 115 AD3d 1001, 1002 [2014], lvs denied 24 NY3d 1082, 1083

[2014]; People v Dyckman, 114 AD3d 994, 995 [2014], lv denied 23

NY3d 1036 [2014]).

McCarthy, J.P., Egan Jr. and Clark, JJ., concur.
-3- 106325 

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court