Opinion
05-10-2024
The PEOPLE of the State of New York, Respondent, v. Shawn M. LYON, Defendant-Appellant.
NICHOLAS A. PASSALACQUA, UTICA, FOR DEFENDANT-APPELLANT. TODD C. CARVILLE, DISTRICT ATTORNEY, UTICA (DAWN CATERA LUPI OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oneida County Court (Robert Bauer, J.), rendered September 19, 2022. The judgment convicted defendant, upon his plea of guilty, of criminal sexual act in the third degree (two counts) and rape in the third degree (four counts).
NICHOLAS A. PASSALACQUA, UTICA, FOR DEFENDANT-APPELLANT.
TODD C. CARVILLE, DISTRICT ATTORNEY, UTICA (DAWN CATERA LUPI OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, MONTOUR, NOWAK, AND KEANE, JJ. MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In this prosecution arising from multiple incidents in which defendant separately engaged in sexual activity with two teenage female victims, defendant appeals from a judgment convicting him, upon his plea of guilty, of four counts of rape in the third degree (Penal Law § 130.25 [2]) and two counts of criminal sexual act in the third degree (§ 130.40 [2]). We affirm.
Even assuming, arguendo, that defendant’s waiver of the right to appeal is invalid (see People v. Tennant, 217 A.D.3d 1564, 1564, 190 N.Y.S.3d 567 [4th Dept. 2023]; see generally People v. Thomas, 34 N.Y.3d 545, 564-566, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied — U.S. —, 140 S.Ct. 2634, 206 L.Ed.2d 512 [2020]) and therefore does not preclude our review of his contention that he was denied his statutory right to a speedy trial (cf. People v. Paduano, 84 A.D.3d 1730, 1730, 922 N.Y.S.2d 726 [4th Dept. 2011]), we conclude that defendant’s contention lacks merit. Although counts 11-14 of the indictment were based on the same incident of sexual activity between defendant and the first victim as alleged in the earlier filed felony complaint, the remaining counts in the indictment were not "based upon several groups of acts ‘so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident’ " (People v. Stone, 265 A.D.2d 891, 892, 697 N.Y.S.2d 212 [4th Dept. 1999], lv denied 94 N.Y.2d 907, 707 N.Y.S.2d 392, 728 N.E.2d 991 [2000]) inasmuch as counts 1-10 charged defendant for conduct arising from "separate and distinct" incidents of sexual activity with the first victim that preceded the incident that was the subject of the felony complaint and counts 15-27 charged defendant for conduct arising from "separate and distinct" incidents of sexual activity with the second victim that were not the subject of the felony complaint (People v. Lowman, 103 A.D.3d 976, 977, 959 N.Y.S.2d 568 [3d Dept. 2013]; see People v. Crowell, 130 A.D.3d 1362, 1362-1365, 15 N.Y.S.3d 494 [3d Dept. 2015], lv denied 26 N.Y.3d 1144, 32 N.Y.S.3d 58, 51 N.E.3d 569 [2016], cert denied 580 U.S. 1202, 137 S.Ct. 1333, 197 L.Ed.2d 526 [2017]; People v. Sant, 120 A.D.3d 517, 517-519, 990 N.Y.S.2d 630 [2d Dept. 2014]; People v. Fehr, 45 A.D.3d 920, 920-922, 844 N.Y.S.2d 478 [3d Dept. 2007], lv denied 10 N.Y.3d 764, 854 N.Y.S.2d 326, 883 N.E.2d 1261 [2008]). Consequently, County Court properly dismissed counts 11-14 of the indictment inasmuch as those counts related back for purposes of CPL 30.30 (1) (a) to the filing of the felony complaint and the People were not ready for trial within the requisite time period; however, contrary to defendant’s contention, the court properly refused to dismiss counts 1-10 and counts 15-27 because those counts related back to the filing of the indictment and it is uncontested that the People were thereafter ready for trial within the requisite time period with respect to those counts (see Lawman, 103 A.D.3d at 977-978, 959 N.Y.S.2d 568; see also Crowell, 130 A.D.3d at 1365, 15 N.Y.S.3d 494).