PEOPLE v. HENRY (2026)

Judgment, Supreme Court, New York County (Curtis J. Farber, J.), rendered July 10, 2023, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree and sentencing him, as a second violent felony offender, to a term of 51/212 years, unanimously affirmed.

The record establishes that defendant's waiver of his right to appeal was voluntary, knowing and intelligent (see People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. 1302, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]), which forecloses review of his statutory speedy trial claim (see e.g. People v. Ekukpe, 236 A.D.3d 528, 528, 228 N.Y.S.3d 550 [1st Dept. 2025], lv granted 44 N.Y.3d 993, 242 N.Y.S.3d 210, 269 N.E.3d 196 [2025];  People v. Hall, 210 A.D.3d 482, 482, 176 N.Y.S.3d 480 [1st Dept. 2022], lv denied 39 N.Y.3d 1078, 184 N.Y.S.3d 275, 204 N.E.3d 1057 [2023]).  Both the court's colloquy and the written waiver explained that appellate rights are separate and distinct from the trial rights automatically forfeited by a guilty plea, and defendant confirmed that he understood the rights he was waiving and had read, understood, and discussed with his counsel the written waiver of appeal (see People v. Castillo, 226 A.D.3d 573, 574, 207 N.Y.S.3d 525 [1st Dept. 2024], lv denied 41 N.Y.3d 1017, 214 N.Y.S.3d 306, 237 N.E.3d 1246 [2024]), which explicitly stated that defendant was waiving this right.  Nor did the court falsely state that defendant would waive his right to assigned counsel by waiving his right to appeal (see People v. Gonzalez, ––– A.D.3d ––––, ––––, ––– N.Y.S.3d ––––, 2026 N.Y. Slip Op. 00203,*1 [1st Dept 2026];  People v. Diallo, 242 A.D.3d 612, 612, 241 N.Y.S.3d 656 [1st Dept. 2025];  cf.  People v. Kyra J., 180 A.D.3d 929, 929–930, 115 N.Y.S.3d 905 [2d Dept. 2020], lv denied 35 N.Y.3d 971, 125 N.Y.S.3d 28, 148 N.E.3d 492 [2020]).

As an alternative holding, we reject defendant's statutory speedy trial claim on the merits, as our independent review of the record supports Supreme Court's finding that there were exceptional circumstances that caused the People's delay, as they were awaiting DNA comparison evidence and exercised due diligence to obtain these results (see CPL 30.30[4][g][i];  People v. Clarke, 28 N.Y.3d 48, 52, 41 N.Y.S.3d 200, 63 N.E.3d 1144 [2016];  People v. Logan, 222 A.D.3d 494, 495, 202 N.Y.S.3d 43 [1st Dept. 2023], lv denied 41 N.Y.3d 943, 206 N.Y.S.3d 247, 229 N.E.3d 1140 [2024];  cf.  People v. Gonzalez, 136 A.D.3d 581, 582, 26 N.Y.S.3d 39 [1st Dept. 2016]).  Defendant's contention that this evidence was not sufficiently “material” to excuse the delay is unpreserved, and, in any event, unavailing.