PEOPLE v. GONZALEZ (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Toni Cimino, J.), rendered April 27, 2023, convicting him of burglary in the third degree and attempted burglary in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's purported waiver of his right to appeal was invalid because the Supreme Court's oral colloquy mischaracterized the appellate rights waived as encompassing the loss of attendant rights to counsel and to the waiver of costs, fees, and expenses and assignment of counsel (see People v. Diaz, 234 A.D.3d 871, 871, 225 N.Y.S.3d 371;  People v. Lawrence, 227 A.D.3d 829, 829, 208 N.Y.S.3d 711).  Although the defendant executed a written appeal waiver form, the court failed to confirm that the defendant understood the contents of the written waiver (see People v. Hopkins, 227 A.D.3d 734, 734, 209 N.Y.S.3d 569;  People v. Richards, 224 A.D.3d 782, 205 N.Y.S.3d 200).  Thus, the defendant's purported appeal waiver does not preclude appellate review of his statutory speedy trial or excessive sentence claims (see People v. Mingo, 243 A.D.3d 808, ––––, ––– N.Y.S.3d ––––).

“In felony cases such as this one, CPL 30.30 requires the People to be ready for trial within six months of the commencement of the action” (People v. Serrano, 234 A.D.3d 879, 882, 225 N.Y.S.3d 365;  see CPL 30.30[1][a]).  “Absent an individualized finding of special circumstances, ‘the prosecution shall not be deemed ready for trial for [the] purposes of [CPL 30.30] until it has filed a proper [certificate of compliance (hereinafter COC)]’ ” (People v. Serrano, 234 A.D.3d at 882, 225 N.Y.S.3d 365, quoting CPL 245.50[3]).

“When a defendant moves pursuant to CPL 30.30 to dismiss the indictment on the ground that the People failed to exercise due diligence and therefore did not file a proper COC, ‘the People bear the burden of establishing that they did, in fact, exercise due diligence and made reasonable inquiries prior to filing the initial COC despite a belated or missing disclosure’ ” (People v. Serrano, 234 A.D.3d at 882, 225 N.Y.S.3d 365, quoting People v. Bay, 41 N.Y.3d 200, 213, 208 N.Y.S.3d 490, 232 N.E.3d 168).  “ ‘If the prosecution fails to make such a showing, the COC should be deemed improper, the readiness statement stricken as illusory, and—so long as the time chargeable to the People exceeds the applicable CPL 30.30 period—the case dismissed’ ” (People v. Serrano, 234 A.D.3d at 882, 225 N.Y.S.3d 365, quoting People v. Bay, 41 N.Y.3d at 213, 208 N.Y.S.3d 490, 232 N.E.3d 168).

Here, the People's initial COC was valid, and the statement of readiness was not illusory (see People v. Macaluso, 230 A.D.3d 1158, 1159–1160, 218 N.Y.S.3d 105).  The record demonstrates that the People “exercis[ed] due diligence and ma[de] reasonable inquiries and efforts to ascertain the existence of, obtain, and disclose material and information subject to discovery” (CPL 245.50[1]), “as evidenced by the extensive, voluminous documents provided to the defendant with the initial [COC] and statement of readiness” (People v. Macaluso, 230 A.D.3d at 1160, 218 N.Y.S.3d 105;  see People ex rel. Nieves v. Maginley–Liddie, 232 A.D.3d 568, 570, 221 N.Y.S.3d 176).  The People's belated disclosures that accompanied the supplemental certificates of compliance were made in good faith and with due diligence, were minimal, and were voluntarily provided to the defense once the People were made aware of the existence of the undisclosed materials (see People ex rel. Nieves v. Maginley–Liddie, 232 A.D.3d at 570, 221 N.Y.S.3d 176;  People v. Macaluso, 230 A.D.3d at 1160, 218 N.Y.S.3d 105).  Moreover, the defendant did not request any sanctions or accommodations based upon the belated disclosures aside from seeking dismissal of the indictment (see People v. Emanuel, 239 A.D.3d 767, 768, 236 N.Y.S.3d 278;  People v. Macaluso, 230 A.D.3d at 1160, 218 N.Y.S.3d 105).  Accordingly, since the People's initial COC was proper, and the statement of trial readiness was not illusory, the Supreme Court properly denied the defendant's motion to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial pursuant to CPL 30.30(1)(a) (see People v. Macaluso, 230 A.D.3d at 1160, 218 N.Y.S.3d 105).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

DUFFY, J.P., WOOTEN, LOVE and HOM, JJ., concur.