THE PEOPLE OF THE STATE OF NEW YORK v. LUIS RODRIGUEZ (2026)

MEMORANDUM AND ORDER

Calendar Date:  May 28, 2026

Appeal from a judgment of the Supreme Court (Stephan Schick, J.), rendered January 25, 2022 in Sullivan County, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

State troopers effectuated a traffic stop of a vehicle driven by defendant in the early morning hours of July 30, 2019, searched the vehicle after detecting the odor of marihuana coming from it, and found, as is relevant here, almost 400 grams of fentanyl.  Defendant and a passenger in the vehicle were arrested and, in November 2020, were charged in an indictment with criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree and endangering the welfare of a child.  Defendant joined in the motion of his codefendant to dismiss the indictment on statutory speedy trial grounds, which was denied (see CPL 30.30).  Then, while awaiting a decision on his application to suppress the evidence recovered during the vehicle search, defendant pleaded guilty to criminal possession of a controlled substance in the third degree in satisfaction of the indictment.¹  The plea agreement, which included a waiver of the right to appeal, contemplated that defendant would be sentenced to a prison term of no less than six years and no more than 12 years.  Supreme Court thereafter sentenced defendant, as a second felony offender, to six years in prison, to be followed by three years of postrelease supervision.  Defendant appeals.

We affirm.  The People concede that “the written waiver of appeal executed in this matter was overbroad and, hence, invalid, [but] the lack of a valid written waiver is not fatal where, as here, the oral waiver colloquy is sufficient to demonstrate that the defendant knowingly, intelligently and voluntarily waived his or her right to appeal” (People v. Goodnough, 233 AD3d 1185, 1185 [3d Dept 2024] [internal quotation marks and citations omitted];  compare People v. Nedd, 230 AD3d 833, 833 [3d Dept 2024], lv denied 42 NY3d 1081 [2025] ).  Supreme Court, hewing to the model colloquy, elicited defendant's understanding that he retained the right to appeal after pleading guilty “and that the waiver of the right to appeal was separate and distinct from those rights automatically forfeited by his guilty plea” (People v. Martin, 243 AD3d 968, 970 [3d Dept 2025], lv denied 45 NY3d 946 [2026];  see People v. Thomas, 34 NY3d 545, 558–559 [2019];  People v. Sweeney, 246 AD3d 1163, 1164–1165 [3d Dept 2026], lv denied _ NY3d _ [June 25, 2026];  see also N.Y. Model Colloquies, Right to Appeal Waived, https://www.nycourts.gov/judges/cji/8–Colloquies/Waiver_of_Right_to_Appeal.pdf [last accessed July 27, 2026] ).  The court also advised that certain appellate issues would survive that waiver, providing specific examples, and defendant confirmed that he understood before acknowledging that “he had discussed the waiver and his appellate rights with defense counsel” and was voluntarily waiving his right to appeal (People v. Sweeney, 246 AD3d at 1164;  see People v. Thomas, 34 NY3d at 558–559;  People v. Martin, 243 AD3d at 970).  The oral colloquy therefore demonstrated that defendant knowingly, voluntarily and intelligently waived his right to appeal (see People v. Sweeney, 246 AD3d at 1165;  People v. Goodnough, 233 AD3d at 1185).  His assertion that the sentence is unduly harsh or severe is foreclosed by that valid waiver (see People v. Lopez, 6 NY3d 248, 255–256 [2006];  People v. Austin, 243 AD3d 1068, 1070 [3d Dept 2025], lv denied 45 NY3d 968 [2026] ).

Defendant's claims of ineffective assistance survive his appeal waiver insofar as they implicate the voluntariness of his plea, but are unpreserved given his apparent failure to pursue them in an appropriate postallocution motion, and the narrow exception to the preservation rule does not apply (see People v. Steinhoff, 244 AD3d 1587, 1587–1588 [3d Dept 2025], lv denied 45 NY3d 948 [2026];  People v. Willetts, 234 AD3d 1020, 1020 [3d Dept 2025], lv denied 43 NY3d 966 [2025] ).  In any event, “[w]ith respect to defendant's claim that defense counsel was ineffective in allowing defendant to plead guilty before the court issued its suppression ruling,” he offered nothing beyond speculation that counsel lacked “strategic or other legitimate explanations for” that decision (People v. Michel, 242 AD3d 1611, 1612 [4th Dept 2025], lv denied 44 NY3d 1053 [2025] ).²  His remaining “claims involve matters outside of the record, [and] are more properly addressed in the context of a CPL article 440 motion” (People v. Faublas, 216 AD3d 1358, 1359 [3d Dept 2023], lv denied 40 NY3d 934 [2023];  see People v. Austin, 243 AD3d at 1070).

Finally, contrary to defendant's argument, his appeal waiver precludes his assertion that his statutory right to a speedy trial was violated (see People v. Sheehan, 242 AD3d 1260, 1261–1262 [3d Dept 2025], lv denied 44 NY3d 1054 [2025];  People v. Wint, 222 AD3d 1050, 1051 [3d Dept 2023], lv denied 41 NY3d 945 [2024] ).  His claim of a constitutional speedy trial violation survives his guilty plea and appeal waiver but, because he only moved for dismissal on statutory speedy trial grounds, it is unpreserved for our review (see People v. Sheehan, 242 AD3d at 1262).  Were we to review the factors set forth in People v. Taranovich (37 N.Y.2d 442, 445 [1975] ), we would be satisfied that the 16–month preindictment delay here did not deprive defendant of his constitutional right to a speedy trial (see People v. Tyson, _ NY3d _, _, 2026 N.Y. Slip Op 01446, *1–2 [2026];  People v. Irvis, 90 AD3d 1302, 1303–1304 [3d Dept 2011], lv denied 19 NY3d 962 [2012];  People v. Arrington, 31 AD3d 801, 802 [3d Dept 2006], lv denied 7 NY3d 865 [2006] ).

Garry, P.J., Fisher, Mackey and Ryba, JJ., concur.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   The suppression hearing occurred on March 8, 2021, prior to the effective date of statutory language providing that the odor of marihuana by itself would not permit a “finding or determination of reasonable cause to believe a crime has been committed” (Penal Law § 222.05[3][a], as added by L 2021, ch 92, § 16;  compare People v. Martin, 242 AD3d 18, 20–22 [3d Dept 2025], lv granted 44 NY3d 985 [2025] ).

2.   A legitimate explanation is apparent from the record, in fact, as Supreme Court made clear to the parties that it viewed the “suppression issue [as] straight forward” and urged them to discuss a resolution that would avoid a conviction upon the class A–I felony of criminal possession of a controlled substance in the first degree.

Corcoran, J.