Opinion
05-24-2017
The PEOPLE, etc., respondent, v. Keyan PRICE, appellant.
Lynn W.L. Fahey, New York, NY (Barry Stendig of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette M. Traill, and Nancy Fitzpatrick Talcott of counsel; Yuliya Shyrokonis on the brief), for respondent.
Lynn W.L. Fahey, New York, NY (Barry Stendig of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette M. Traill, and Nancy Fitzpatrick Talcott of counsel; Yuliya Shyrokonis on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered October 22, 2014, convicting him of attempted sex trafficking, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the record demonstrates that he knowingly, intelligently, and voluntarily waived his right to appeal (see People v. Ramos, 7 N.Y.3d 737, 738, 819 N.Y.S.2d 853, 853 N.E.2d 222 ; cf. People v. Black, 144 A.D.3d 935, 935–936, 41 N.Y.S.3d 126 ). The defendant's valid waiver of his right to appeal precludes appellate review of his claim that the sentence imposed was excessive (see People v. Helmus, 125 A.D.3d 884, 4 N.Y.S.3d 116 ; People v. Farmer, 123 A.D.3d 735, 995 N.Y.S.2d 918 ; People v. Kelly, 121 A.D.3d 713, 713, 993 N.Y.S.2d 169 ).
The defendant's challenge to the denial of his statutory speedy trial motion, raised in point I of his pro se supplemental brief, is precluded by his valid waiver of the right to appeal (see People v. Zeigler, 128 A.D.3d 737, 738, 7 N.Y.S.3d 600 ; People v. Kidd, 100 A.D.3d 779, 779, 953 N.Y.S.2d 863 ; People v. Holland, 44 A.D.3d 874, 874, 843 N.Y.S.2d 457 ). Moreover, by pleading guilty, the defendant forfeited his right to appellate review of the statutory speedy trial claim (see People v. Zeigler, 128 A.D.3d at 738, 7 N.Y.S.3d 600 ; People v. Franco, 104 A.D.3d 790, 790, 960 N.Y.S.2d 507 ; People v. Kidd, 100 A.D.3d at 779, 953 N.Y.S.2d 863 ; People v. Holland, 44 A.D.3d at 874, 843 N.Y.S.2d 457 ).
The defendant's claim that his constitutional right to a speedy trial was violated, raised in point II of his pro se supplemental brief, survives both the entry of his plea of guilty and the waiver of his right to appeal (see People v. Worthy, 138 A.D.3d 1042, 1043, 30 N.Y.S.3d 260 ). However, the claim is unpreserved for appellate review, since he failed to move to dismiss the indictment on that ground and raises the issue for the first time on appeal (see People v. Card, 107 A.D.3d 820, 820, 968 N.Y.S.2d 803 ). In any event, as the People correctly contend, review is precluded by the lack of an adequate record, which was the defendant's burden to provide (see People v. Worthy, 138 A.D.3d at 1043, 30 N.Y.S.3d 260 ; People v. Thomas, 128 A.D.3d 440, 440–441, 9 N.Y.S.3d 38 ; People v. Card, 107 A.D.3d at 820, 968 N.Y.S.2d 803 ).
The defendant's contention that the Supreme Court erred in denying his motions to controvert the People's second felony offender statement, raised in point III of his pro se supplemental brief, is without merit. The Supreme Court properly denied the motions on the ground that this Court, in affirming a prior judgment convicting the defendant, previously found the basis for the motions to be without merit (see People v. Price, 256 A.D.2d 596, 685 N.Y.S.2d 72 ). The defendant's contention that the Supreme Court erred in denying his motion to redact the presentence investigation report, raised in point IV of his pro se supplemental brief, is barred by his valid waiver of the right to appeal (see People v. Conley, 135 A.D.3d 1238, 1238, 23 N.Y.S.3d 724 ; People v. Abdul, 112 A.D.3d 644, 645, 976 N.Y.S.2d 187 ).
The defendant's nonjurisdictional claims that the indictment was factually insufficient and that the counts were duplicitous, raised in point V of his pro se supplemental brief, are precluded from appellate review by his valid appeal waiver (see People v. Palladino, 140 A.D.3d 1194, 1195, 33 N.Y.S.3d 469 ; People v. Jackson, 129 A.D.3d 1342, 1342–1343, 10 N.Y.S.3d 368 ).
RIVERA, J.P., AUSTIN, MILLER and BARROS, JJ., concur.