Opinion
16343 Ind. No. 2277/16 Case No. 2019–05126
10-06-2022
The PEOPLE of the State of New York, Respondent, v. Scott MERCHANT, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Christopher Michael Pederson of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Christopher Michael Pederson of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Moulton, Kennedy, Pitt, JJ.
Judgment, Supreme Court, Bronx County (Ralph Fabrizio, J. at speedy trial motion; Miriam R. Best, J. at plea and sentencing), rendered November 12, 2019, convicting defendant of assault in the second degree, and sentencing him, as a second felony offender, to a term of 3½ years, unanimously affirmed.
Defendant made a valid waiver of his right to appeal (see People v. Thomas, 34 N.Y.3d 545, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019], cert denied 589 U.S. ––––, 140 S. Ct. 2634, 206 L.Ed.2d 512 [2020] ; People v. Bryant, 28 N.Y.3d 1094, 1096, 45 N.Y.S.3d 335, 68 N.E.3d 60 [2016] ), which forecloses review of his statutory speedy trial claims (see People v. Lara–Medina, 195 A.D.3d 542, 145 N.Y.S.3d 804 [1st Dept. 2021], lv denied 37 N.Y.3d 993, 152 N.Y.S.3d 426, 174 N.E.3d 366 [2021] ; People v. Person, 184 A.D.3d 447, 447–448, 126 N.Y.S.3d 14 [1st Dept. 2020], lv denied 35 N.Y.3d 1069, 129 N.Y.S.3d 387, 152 N.E.3d 1189 [2020] ).
Furthermore, regardless of whether defendant made a valid waiver of his right to appeal, he forfeited review of his speedy trial claim by pleading guilty (see People v. O'Brien, 56 N.Y.2d 1009, 1010, 453 N.Y.S.2d 638, 439 N.E.2d 354 [1982] ). Defendant was convicted before the effective date of the current version of CPL 30.30(6), which prospectively permits defendants who pleaded guilty to raise statutory speedy trial claims on appeal, but which is not retroactive (see Lara–Medina, 195 A.D.3d at 542, 145 N.Y.S.3d 804 ). In ( People v. Galindo , 38 N.Y.3d 199, 171 N.Y.S.3d 865, 191 N.E.3d 1136 [2022] ), the Court of Appeals recently decided that another amendment to the speedy trial statute was not to be applied retroactively, and we conclude that the Court's analysis also applies to CPL 30.30(6) (see People v. Omodunbi, 76 Misc.3d 129[A], 2022 WL 3570009, 2022 N.Y. Slip Op. 50791[U] [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2022] ).
In any event, we find that the motion court correctly denied defendant's CPL 30.30 motion as procedurally defective.
Defendant's appeal waiver also forecloses review of his excessive sentence claim. In any event, we perceive no basis for reducing the sentence.