Opinion
02-21-2024
The PEOPLE, etc., respondent, v. Cadine GORE, appellant.
Patricia Pazner, New York, NY (Anders Nelson of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Edan Benmelech of counsel), for respondent.
Patricia Pazner, New York, NY (Anders Nelson of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Edan Benmelech of counsel), for respondent.
MARK C. DILLON, J.P., ANGELA G. IANNACCI, LILLIAN WAN, JANICE A. TAYLOR, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gene Lopez, J.), rendered February 6, 2020, convicting him of assault in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
[1] We note as an initial matter that as of January T, 2020 (see L 2019, ch 59, § 1, part KKK, §§ 1, 2), "[a]n order finally denying a motion to dismiss pursuant to [CPL 30.30(1)] shall be reviewable upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty" (CPL 30.30[6]; see People v. Jackson, 207 A.D.3d 1080, 1080, 170 N.Y.S.3d 773). Here, the defendant’s challenge to the denial of his statutory speedy trial motion is reviewable on appeal. Although the defendant pleaded guilty on December 2, 2019, the judgment of conviction was not rendered until February 6, 2020, after the effective date of the statute (see People v. Votaw, 190 A.D.3d 1162, 1163–1164, 139 N.Y.S.3d 455; People v. Person, 184 A.D.3d 447, 447–448, 126 N.Y.S.3d 14; cf. People v. George, 199 A.D.3d 831, 832, 154 N.Y.S.3d 269; People v. Lara-Medina, 195 A.D.3d 542, 542, 145 N.Y.S.3d 804).
[2, 3] However, the defendant validly waived his right to appeal. Although the written waiver of the right to appeal included incorrect statements of the applicable law, the record demonstrates that, under the totality of the circumstances, including the Supreme Court’s oral colloquy, the defendant’s consultation with counsel, and the defendant’s age and experience, the defendant had a full appreciation of the terms and consequences of the appeal waiver (see People v. Reyes–Guzman, 222 A.D.3d 887, 887, 200 N.Y.S.3d 103; People v. Stacker, 206 A.D.3d 766, 766, 167 N.Y.S.3d 800; People v. Yakubov, 204 A.D.3d 1043, 1044, 165 N.Y.S.3d 355; People v. Lawrence, 184 A.D.3d 587, 587, 123, N.Y.S.3d 530). " ‘[G]enerally, an appeal waiver will encompass any issue that does not involve a right of constitutional dimension going to the very heart of the process,’ " including a defendant’s statutory speedy trial claim (People v. Votaw, 190 A.D.3d at 1164, 139 N.Y.S.3d 455, quoting People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145). Contrary to the defendants contention, "the enactment of CPL 30.30(6) does not alter that analysis" (People v. Votaw, 190 A.D.3d at 1164, 139 N.Y.S.3d 455; see People v. Person, 184 A.D.3d at 448, 126 N.Y.S.3d 14).
Accordingly, the defendant’s valid waiver of his right to appeal precludes appellate review of his contention that the Supreme Court should have granted his motion pursuant to CPL 30.30 to dismiss the indictment on the ground that he was denied the statutory right to a speedy trial (see People v. Votaw, 190 A.D.3d at 1163–1164, 139 N.Y.S.3d 455).
DILLON, J.P., IANNACCI, WAN and TAYLOR, JJ., concur.