PEOPLE v. KELLY (2024)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]). We affirm.

Contrary to defendant's contention, we conclude that the plea colloquy establishes that he knowingly, voluntarily, and intelligently waived the right to appeal (see People v. Cunningham, 213 A.D.3d 1270, 1270, 182 N.Y.S.3d 459 [4th Dept. 2023], lv denied 39 N.Y.3d 1110, 186 N.Y.S.3d 845, 208 N.E.3d 73 [2023]; People v. Witherow, 203 A.D.3d 1595, 1595, 164 N.Y.S.3d 742 [4th Dept. 2022]; see generally People v. Thomas, 34 N.Y.3d 545, 559-564, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied ––– U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]). Supreme Court's misstatement at sentencing that defendant could still appeal the denial of his statutory speedy trial motion does not vitiate his otherwise valid waiver of the right to appeal (see People v. Snyder, 153 A.D.3d 1662, 1663, 60 N.Y.S.3d 871 [4th Dept. 2017]; People v. West, 239 A.D.2d 921, 921, 659 N.Y.S.2d 598 [4th Dept. 1997], lv denied 90 N.Y.2d 944, 664 N.Y.S.2d 762, 687 N.E.2d 659 [1997]; see generally People v. Moissett, 76 N.Y.2d 909, 910, 912, 563 N.Y.S.2d 43, 564 N.E.2d 653 [1990]). Consequently, defendant's valid waiver of the right to appeal precludes our review of his contention that he was denied his statutory right to a speedy trial (see People v. Wint, 222 A.D.3d 1050, 1051, 201 N.Y.S.3d 544 [3d Dept. 2023], lv denied 41 N.Y.3d 945, 206 N.Y.S.3d 248, 229 N.E.3d 1141 [2024]; People v. Person, 184 A.D.3d 447, 447, 126 N.Y.S.3d 14 [1st Dept. 2020], lv denied 35 N.Y.3d 1069, 129 N.Y.S.3d 387, 152 N.E.3d 1189 [2020]; People v. Paduano, 84 A.D.3d 1730, 1730, 922 N.Y.S.2d 726 [4th Dept. 2011]).

Although it survives his valid waiver of the right to appeal (see People v. Gessner, 155 A.D.3d 1668, 1669, 64 N.Y.S.3d 822 [4th Dept. 2017]; see generally People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]; People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989]), we conclude that defendant's contention that his constitutional right to a speedy trial was violated is unpreserved for our review because defendant failed to move to dismiss the accusatory instrument on that ground (see People v. Works, 211 A.D.3d 1574, 1575, 180 N.Y.S.3d 443 [4th Dept. 2022], lv denied 39 N.Y.3d 1114, 186 N.Y.S.3d 830, 208 N.E.3d 58 [2023]; People v. Williams, 120 A.D.3d 1526, 1526-1527, 993 N.Y.S.2d 196 [4th Dept. 2014], lv denied 24 N.Y.3d 1090, 1 N.Y.S.3d 16, 25 N.E.3d 353 [2014]; People v. Chinn, 104 A.D.3d 1167, 1169, 960 N.Y.S.2d 788 [4th Dept. 2013], lv denied 21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392 [2013]). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).