Opinion
752 KA 17–00557
06-15-2018
The PEOPLE of the State of New York, Respondent, v. Pierre MCCULLEN, Defendant–Appellant.
KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
KATHRYN FRIEDMAN, BUFFALO, FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of grand larceny in the fourth degree ( Penal Law § 155.30[4] ). Although defendant's contention that the plea was not knowingly, intelligently and voluntarily entered survives his waiver of the right to appeal (see People v. Gill, 149 A.D.3d 1597, 1597, 51 N.Y.S.3d 472 [4th Dept. 2017], lv denied 29 N.Y.3d 1127, 64 N.Y.S.3d 677, 86 N.E.3d 569 [2017] ), defendant failed to move to withdraw his guilty plea or to vacate the judgment of conviction and thus failed to preserve that contention for our review (see People v. Morrison, 78 A.D.3d 1615, 1616, 911 N.Y.S.2d 541 [4th Dept. 2010], lv denied 16 N.Y.3d 834, 921 N.Y.S.2d 198, 946 N.E.2d 186 [2011] ). In any event, defendant's contention lacks merit, because his assertion that he did not understand the nature of the plea or its consequences is belied by the record of the plea proceeding (see People v. Manor, 121 A.D.3d 1581, 1582, 993 N.Y.S.2d 424 [4th Dept. 2014], affd 27 N.Y.3d 1012, 35 N.Y.S.3d 272, 54 N.E.3d 1143 [2016] ).
Defendant further contends that the approximately 18–month delay in sentencing him was unreasonable as a matter of law (see generally CPL 380.30[1] ), and that such delay requires vacatur of the judgment of conviction and dismissal of the indictment. Although defendant's contention survives his waiver of the right to appeal (see People v. Campbell, 97 N.Y.2d 532, 534–535, 743 N.Y.S.2d 396, 769 N.E.2d 1288 [2002] ), defendant failed to preserve his contention for our review inasmuch as, when defendant appeared for sentencing, he made no objection or challenge to the proceeding (see People v. Kerrick, 136 A.D.3d 1099, 1100, 25 N.Y.S.3d 392 [3d Dept. 2016] ; People v. Washington, 121 A.D.3d 1583, 1583, 992 N.Y.S.2d 919 [4th Dept. 2014] ). In any event, we conclude that defendant's contention is without merit. The delay in sentencing defendant is excusable because it was attributable to ongoing legal proceedings involving his codefendants, in which defendant was required to cooperate pursuant to the terms of the plea agreement (see People v. Ingvarsdottir, 118 A.D.3d 1023, 1024, 987 N.Y.S.2d 460 [2d Dept. 2014] ; People v. Arroyo, 22 A.D.3d 881, 882, 802 N.Y.S.2d 552 [3d Dept. 2005], lv denied 6 N.Y.3d 773, 811 N.Y.S.2d 340, 844 N.E.2d 795 [2006] ).