Opinion
2012-06-15
The PEOPLE of the State of New York, Respondent, v. Tyray GILLIAM, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. Tyray Gilliam, Defendant–Appellant Pro Se.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Defendant–Appellant. Tyray Gilliam, Defendant–Appellant Pro Se.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: SMITH, J.P., CENTRA, CARNI, AND SCONIERS, JJ.
MEMORANDUM:
In a prior appeal ( People v. Gilliam, 86 A.D.3d 923, 2011 WL 2586433,revd.19 N.Y.3d 842 [May 8, 2012] ), we summarily affirmed the judgment convicting defendant of rape in the second degree (Penal Law § 130.30[1] ). Defendant had contended that his sentence was unduly harsh and severe. In reversing our order, the Court of Appeals concluded that we may not summarily affirm a judgment “without indicating whether [we] relied on the waiver [of the right to appeal] or determined that the sentencing claim lacked merit” ( Gilliam, 19 N.Y.3d at 843–44, 946 N.Y.S.2d at 98, 969 N.E.2d at 215). The Court remitted the matter to this Court “for clarification of the basis of [our] decision” ( id. at 843–44, 946 N.Y.S.2d at 99, 969 N.E.2d at 215).
Upon remittal, we conclude that defendant's unrestricted waiver of the right to appeal encompassed his right to challenge the severity of the sentence ( see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46). To the extent that defendant in his pro se supplemental brief challenges “the denial of his CPL 190.80 motion for release on his own recognizance predicated on the alleged failure to indict him within 45 days of his arrest, we note that such a challenge became moot when the indictment was issued” ( People v. Phillips, 277 A.D.2d 816, 819, 715 N.Y.S.2d 793,lv. denied96 N.Y.2d 804, 726 N.Y.S.2d 382, 750 N.E.2d 84). The remaining contention of defendant in his pro se supplemental brief, which concerns a matter raised in his omnibus motion, is not properly before us. That contention is also encompassed by defendant's unrestricted waiver of the right to appeal and, in any event, “[t]he record reflects that defendant withdrew his omnibus motion as part of the plea of guilty, thereby foreclosing our review of the issues raised therein” ( People v. Thousand, 41 A.D.3d 1272, 1273, 836 N.Y.S.2d 467,lv. denied9 N.Y.3d 927, 844 N.Y.S.2d 182, 875 N.E.2d 901;see People v. Williams, 55 A.D.3d 759, 864 N.Y.S.2d 779;People v. Gully, 17 A.D.3d 382, 792 N.Y.S.2d 199,lv. denied5 N.Y.3d 763, 801 N.Y.S.2d 257, 834 N.E.2d 1267).
Now, upon remittitur from the Court of Appeals,
It is hereby ORDERED that, upon remittitur from the Court of Appeals, the judgment so appealed from is unanimously affirmed.