Opinion
No. 653 KA 22-00351
10-04-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. DETROIT KELLY, DEFENDANT-APPELLANT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (RYAN P. ASHE OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (RYAN P. ASHE OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, OGDEN, NOWAK, AND KEANE, JJ.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.), rendered November 22, 2021. The judgment convicted defendant upon his plea of guilty of attempted criminal possession of a weapon in the second degree.
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 attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]). We affirm.
Contrary to defendant's contention, we conclude that the plea colloquy establishes that he knowingly, voluntarily, and intelligently waived the right to appeal (see People v/ Cunningham, 213 A.D.3d 1270, 1270 [4th Dept 2023], lv denied 39 N.Y.3d 1110 [2023]; People v. Witherow, 203 A.D.3d 1595, 1595 [4th Dept 2022]; see generally People v. Thomas, 34 N.Y.3d 545, 559-564 [2019], cert denied - U.S. -, 140 S.Ct. 2634 [2020]). Supreme Court's misstatement at sentencing that defendant could still appeal the denial of his statutory speedy trial motion does not vitiate his otherwise valid waiver of the right to appeal (see People v. Snyder, 153 A.D.3d 1662, 1663 [4th Dept 2017]; People v. West, 239 A.D.2d 921, 921 [4th Dept 1997], lv denied 90 N.Y.2d 944 [1997]; see generally People v. Moissett, 76 N.Y.2d 909, 910, 912 [1990]). Consequently, defendant's valid waiver of the right to appeal precludes our review of his contention that he was denied his statutory right to a speedy trial (see People v. Wint, 222 A.D.3d 1050, 1051 [3d Dept 2023], lv denied 41 N.Y.3d 945 [2024]; People v. Person, 184 A.D.3d 447, 447 [1st Dept 2020], lv denied 35 N.Y.3d 1069 [2020]; People v. Paduano, 84 A.D.3d 1730, 1730 [4th Dept 2011]).
Although it survives his valid waiver of the right to appeal (see People v. Gessner, 155 A.D.3d 1668, 1669 [4th Dept 2017]; see generally People v. Lopez, 6 N.Y.3d 248, 255 [2006]; People v. Seaberg, 74 N.Y.2d 1, 9 [1989]), we conclude that defendant's contention that his constitutional right to a speedy trial was violated is unpreserved for our review because defendant failed to move to dismiss the accusatory instrument on that ground (see People v. Works, 211 A.D.3d 1574, 1575 [4th Dept 2022], lv denied 39 N.Y.3d 1114 [2023]; People v. Williams, 120 A.D.3d 1526, 1526-1527 [4th Dept 2014], lv denied 24 N.Y.3d 1090 [2014]; People v. Chinn, 104 A.D.3d 1167, 1169 [4th Dept 2013], lv denied 21 N.Y.3d 1014 [2013]). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).