PEOPLE v. OLIVERI (2008)

 Defendant appeals from a judgment convicting him upon his plea of guilty of rape in the first degree (Penal Law § 130.35[1] ).   Contrary to the contention of defendant, his waiver of the right to appeal was effective despite the fact that it was not reduced to writing, and we otherwise conclude that the waiver was knowingly, voluntarily, and intelligently entered (see People v. Egan, 6 A.D.3d 1206, 1206-1207, 775 N.Y.S.2d 714, lv. denied 3 N.Y.3d 639, 782 N.Y.S.2d 410, 816 N.E.2d 200;  People v. Willis, 2 A.D.3d 1322, 768 N.Y.S.2d 898, lv. denied 2 N.Y.3d 748, 778 N.Y.S.2d 473, 810 N.E.2d 926).   The waiver by defendant of the right to appeal encompasses his challenge to Supreme Court's suppression rulings (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754), as well as his contentions that the indictment is not supported by legally sufficient evidence and that he was denied due process during pretrial procedures (see People v. Simms, 269 A.D.2d 788, 703 N.Y.S.2d 777, lv. denied 94 N.Y.2d 952, 710 N.Y.S.2d 9, 731 N.E.2d 626).

 Although a defendant's jurisdictional challenge survives both a guilty plea and waiver of the right to appeal (see People v. Hansen, 95 N.Y.2d 227, 230-231, 715 N.Y.S.2d 369, 738 N.E.2d 773;  People v. June, 30 A.D.3d 1016, 1017, 817 N.Y.S.2d 799, lv. denied 7 N.Y.3d 813, 822 N.Y.S.2d 488, 855 N.E.2d 804, 7 N.Y.3d 868, 824 N.Y.S.2d 613, 857 N.E.2d 1144), here we reject defendant's jurisdictional challenge.   The court acquired jurisdiction pursuant to a grand jury indictment, and defendant challenges jurisdictional defects in the felony complaints rather than in the indictment.   By pleading guilty, defendant forfeited his contention with respect to the defense of the statute of limitations (see People v. Hayes, 39 A.D.3d 1173, 1175, 834 N.Y.S.2d 784, lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897;  People v. Gerber, 182 A.D.2d 252, 260-261, 589 N.Y.S.2d 171, lv. denied 80 N.Y.2d 1026, 592 N.Y.S.2d 676, 607 N.E.2d 823).   Although the further contention of defendant that he was denied his constitutional right to a speedy trial survives both his waiver of the right to appeal and his plea of guilty (see Egan, 6 A.D.3d at 1207, 775 N.Y.S.2d 714), defendant has raised that contention for the first time on appeal and therefore has failed to preserve it for our review (see People v. Robinson, 1 A.D.3d 1019, 1020, 767 N.Y.S.2d 363, lv. denied 2 N.Y.3d 745, 778 N.Y.S.2d 471, 810 N.E.2d 924).   The contention of defendant that he was denied effective assistance of counsel “does not survive his guilty plea or his waiver of the right to appeal because there was no showing that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of his attorney['s] allegedly poor performance” (People v. Dean, 48 A.D.3d 1244, 852 N.Y.S.2d 545 [internal quotation marks omitted] ).

 In addition, by pleading guilty, defendant forfeited his contentions with respect to alleged discovery violations, preindictment prosecutorial misconduct, and the People's failure to preserve evidence (see People v. Di Raffaele, 55 N.Y.2d 234, 240, 448 N.Y.S.2d 448, 433 N.E.2d 513;  People v. Mayo, 45 A.D.3d 1361, 1362-1363, 845 N.Y.S.2d 588;  Gerber, 182 A.D.2d at 260-261, 589 N.Y.S.2d 171).   We have reviewed defendant's remaining contentions and conclude that none requires reversal.

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

MEMORANDUM: