PEOPLE v. PAYNE (2022)

DECISION & ORDER

Appeals by the defendant from two judgments of the Supreme Court, Nassau County (Robert A. Schwartz, J.), both rendered June 20, 2019, convicting him of criminal sale of a controlled substance in the third degree (eight counts) under Indictment No. 997/17, and grand larceny in the fourth degree and perjury in the first degree under Indictment No. 187/19, upon his pleas of guilty, and imposing sentences.

ORDERED that the judgments are affirmed.

The defendant contends that his waiver of the right to appeal was invalid because he was not afforded the assistance of counsel.  However, the defendant elected to proceed pro se after the Supreme Court engaged in a “searching inquiry” (People v. Stone, 22 N.Y.3d 520, 525, 983 N.Y.S.2d 454, 6 N.E.3d 572 [internal quotation marks omitted]) to clarify that he understood the ramifications of proceeding without counsel (see People v. Providence, 2 N.Y.3d 579, 780 N.Y.S.2d 552, 813 N.E.2d 632;  People v. James, 200 A.D.3d 711, 712, 157 N.Y.S.3d 307).  The record, as a whole, demonstrates that the defendant made a knowing, voluntary, and intelligent decision to waive his right to counsel and to proceed pro se (see People v. Cucchiara, 174 A.D.3d 816, 817, 105 N.Y.S.3d 531;  People v. Stroud, 144 A.D.3d 1056, 1057, 40 N.Y.S.3d 910).  The defendant's waiver of the right to counsel applied to the plea proceeding (see People v. Knatz, 128 A.D.2d 896, 897–898, 513 N.Y.S.2d 821) and to the waiver of his right to appeal (see People v. Rohadfox, 175 A.D.3d 1813, 1814, 109 N.Y.S.3d 537).  Further, the record demonstrates that the defendant's waiver of the right to appeal was knowingly, voluntarily, and intelligently made (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970;  People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344;  People v. Rodriguez, 194 A.D.3d 853, 143 N.Y.S.3d 611).

The defendant's valid waiver of his right to appeal forecloses appellate review of his arguments relating to the Supreme Court's suppression determination (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754;  People v. Castillo, 49 A.D.3d 777, 853 N.Y.S.2d 631), and his contention that the conviction of criminal sale of a controlled substance in the third degree (eight counts) under Indictment No. 997/17 violated his constitutional right against double jeopardy (see People v. Muniz, 91 N.Y.2d 570, 673 N.Y.S.2d 358, 696 N.E.2d 182;  People v. Marshall, 24 A.D.3d 470, 804 N.Y.S.2d 694).

Although the defendant's claim that his constitutional right to a speedy trial was violated survives both the entry of his pleas of guilty and the waiver of his right to appeal (see People v. Worthy, 138 A.D.3d 1042, 1043, 30 N.Y.S.3d 260;  People v. Franco, 104 A.D.3d 790, 791, 960 N.Y.S.2d 507), the defendant's contention is without merit.  Upon balancing all of the factors to be considered in connection with the defendant's constitutional speedy trial claim (see People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303), we find that the defendant's constitutional right to a speedy trial was not violated (see People v. Franco, 104 A.D.3d at 791, 960 N.Y.S.2d 507).

The defendant's contention that the plea agreement was violated is unpreserved for appellate review and, in any event, without merit.

The defendant's remaining contentions are without merit.

DUFFY, J.P., CHRISTOPHER, DOWLING and WARHIT, JJ., concur.