PEOPLE v. CEBALLOS (2025)

Judgment, Supreme Court, New York County (James M. Burke, J., at motions;  Ann E. Scherzer, J., at plea and sentencing), rendered September 13, 2022, convicting defendant, upon his plea of guilty, of attempted criminal sale of a controlled substance in the third degree and criminal possession of a weapon in the third degree, and sentencing him, as a second felony drug offender, to an aggregate term of 2 to 4 years, unanimously affirmed.

Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020];  People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016]), which forecloses review of his statutory speedy trial claim (see People v. Person, 184 A.D.3d 447, 447–448, 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];  see also People v. Suber, 231 A.D.3d 447, 217 N.Y.S.3d 554 [1st Dept. 2024]).

As the trial court never ruled on defendant's constitutional speedy trial claim, and defendant did not alert the court to this omission although he had the opportunity to do so, his constitutional speedy trial claim is unpreserved (see e.g. People v. Holmes, 202 A.D.3d 519, 520, 162 N.Y.S.3d 56 [1st Dept. 2022], lv denied 38 N.Y.3d 1008, 168 N.Y.S.3d 359, 188 N.E.3d 551 [2022];  see generally People v. Callahan, 80 N.Y.2d 273, 282, 590 N.Y.S.2d 46, 604 N.E.2d 108 [1992];  People v. Dunbar, 222 A.D.3d 493, 494, 199 N.Y.S.3d 489 [1st Dept. 2023], lv denied 41 N.Y.3d 942, 206 N.Y.S.3d 253, 229 N.E.3d 1146 [2024]).

Were we to consider his claim on the merits, we would conclude that defendant has not shown that he was deprived of his constitutional right to a speedy trial as he has not made a persuasive showing of specific prejudice or demonstrated that the delay was so egregious as to warrant dismissal regardless of specific prejudice.  We also find nothing in the record to suggest that the delay had any deleterious effect on the defense (see People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975]).  Moreover, we note that as defendant was at liberty during most of the relevant time, he was not prejudiced by incarceration (see People v. Delgado, 161 A.D.3d 528, 529, 77 N.Y.S.3d 36 [1st Dept. 2018], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 428, 108 N.E.3d 502 [2018]).

Defendant's waiver of the right to appeal also forecloses review of his Second Amendment claim premised on (New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 [2022]) (see People v. Johnson, 225 A.D.3d 453, 206 N.Y.S.3d 584 [1st Dept. 2024], lv granted 42 N.Y.3d 939, 217 N.Y.S.3d 895, 242 N.E.3d 680 [2024];  People v. Jackson, 225 A.D.3d 547, 207 N.Y.S.3d 484 [1st Dept. 2024], lv denied 41 N.Y.3d 1002, 213 N.Y.S.3d 243, 236 N.E.3d 1261 [2024]).

Even if the appeal waiver were invalid, defendant failed to preserve his Second Amendment claim (People v. Cabrera, 41 N.Y.3d 35, 42–51, 207 N.Y.S.3d 18, 230 N.E.3d 1082 [2023];  People v. Khan, 225 A.D.3d 552, 552, 206 N.Y.S.3d [1st Dept. 2024], lv denied 41 N.Y.3d 1019, 214 N.Y.S.3d 322, 237 N.E.3d 1262 [2024]), and we decline to consider it in the interest of justice.  As an alternative holding, we find that defendant lacks standing to assert the Second Amendment challenge (see id. at 552, 206 N.Y.S.3d 74), and that he failed to establish that his conviction is unconstitutional (id.).

We have considered defendant's remaining arguments and find them unavailing.