PEOPLE v. ANDINO

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. Walter ANDINO Jr., Also Known as Truth, Appellant.

109693

Decided: July 16, 2020

Before: Lynch, J.P., Devine, Aarons, Pritzker and Reynolds Fitzgerald, JJ. David M. Abbatoy Jr., Rochester, for appellant, and appellant pro se. Michael A. Korchak, District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Broome County (Northrup Jr., J.), rendered August 11, 2017, convicting defendant upon his plea of guilty of the crime of assault in the second degree.

Defendant was charged by indictment with attempted murder in the second degree, assault in the first degree and two counts of criminal possession of a weapon in the second degree stemming from him assaulting and shooting the victim after chasing him from outside of a bar.  He thereafter pleaded guilty to assault in the second degree in satisfaction of the indictment and waived his right to appeal.  He was sentenced, in accordance with the plea agreement, to a prison term of seven years, followed by two years of postrelease supervision.  Defendant appeals.

Initially, we find that defendant's appeal waiver is valid.  The record reflects that, as part of his plea deal, defendant agreed to waive his right to appeal.  During the plea colloquy, defendant confirmed on the record that he was pleading guilty freely and voluntarily, and that he had not been coerced or forced to do so.  County Court then explained to defendant in detail that he was giving up certain trial-related rights by pleading guilty, and that, in addition to those trial-related rights, defendant was also agreeing to waive his “appellate rights which are a separate set of rights,” which defendant confirmed that he understood ( [emphasis added];  see People v. Crawford, 181 A.D.3d 1057, 1058, 119 N.Y.S.3d 633 [2020];  People v. Thacker, 173 A.D.3d 1360, 1361, 102 N.Y.S.3d 764 [2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 730, 133 N.E.3d 434 [2019] ).  Defendant thereafter executed a written appeal waiver in open court with counsel present after defendant confirmed that he had understood it and had an adequate opportunity to review it with his counsel.  Although the appeal waiver contained some overbroad language, it also informed defendant that “certain issues may survive both [his] guilty plea and this waiver, including constitutional speedy trial issues, competency matters, whether [his] plea and this waiver were knowingly, intelligently and voluntarily entered, and an illegal sentence, and may therefore be raised on appeal despite this waiver.”  As a result, “ ‘the counseled defendant understood the distinction that some appellate review survived’ ” (People v. Martin, 179 A.D.3d 1385, 1386, 114 N.Y.S.3d 889 [2020], quoting People v. Thomas, 34 N.Y.3d 545, 561, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019];  compare People v. Martz, 181 A.D.3d 979, 980, 119 N.Y.S.3d 310 [2020];  People v. Barrales, 179 A.D.3d 1313, 1315, 118 N.Y.S.3d 263 [2020] ).  Accordingly, we are satisfied that defendant's combined oral and written waiver of appeal was knowing, voluntary and intelligent (see People v. Shindler, 179 A.D.3d 1306, 1308, 118 N.Y.S.3d 266 [2020];  People v. Boyette, 175 A.D.3d 751, 752, 103 N.Y.S.3d 870 [2019], lv denied 34 N.Y.3d 979, 113 N.Y.S.3d 648, 137 N.E.3d 18 [2019] ).  “In light of the valid appeal waiver, defendant's ․ challenges to the denial of his suppression motion and to the severity of the agreed-upon sentence are foreclosed” (People v. Danzy, 182 A.D.3d 920, 921, 123 N.Y.S.3d 261 [2020];  see People v. Strack, 166 A.D.3d 1171, 1172, 86 N.Y.S.3d 342 [2018], lv denied 32 N.Y.3d 1210, 99 N.Y.S.3d 222, 122 N.E.3d 1135 [2019] ).

Although defendant's contention that his arraignment was intentionally delayed survives his guilty plea and valid appeal waiver (see People v. Thompson, 150 A.D.3d 1156, 1158, 52 N.Y.S.3d 675 [2017], lv denied 30 N.Y.3d 1023, 70 N.Y.S.3d 455, 93 N.E.3d 1219 [2017] ), it is unpreserved for this Court's review as he failed to raise this issue before County Court (see People v. Ramos, 99 N.Y.2d 27, 30, 750 N.Y.S.2d 821, 780 N.E.2d 506 [2002] ).  Were this issue preserved, we would find that there was no unreasonable delay of arraignment, as further investigation was necessary to determine the circumstances of the shooting and that defendant voluntary agreed to speak with the police and was provided with food, water and an opportunity to sleep (see People v. Gause, 38 A.D.3d 999, 1000, 830 N.Y.S.2d 859 [2007] ).  Finally, defendant's related assertion that the alleged delay in his arraignment violated his right to counsel is without merit, as the prompt-arraignment statute – CPL 140.20(1) – does not implicate a constitutional right to counsel (see People v. Ramos, 99 N.Y.2d at 35–37, 750 N.Y.S.2d 821, 780 N.E.2d 506).

ORDERED that the judgment is affirmed.

Lynch, J.P.

Devine, Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur.

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