Opinion
113182
12-07-2023
The PEOPLE of the State of New York, Respondent, v. Wayne A. WINT, Appellant.
Michael T. Baker, Public Defender, Binghamton (Jonathan L. Rothermel of counsel), for appellant. Michael A. Korchak, District Attorney, Binghamton (Geoffrey B. Rossi of counsel), for respondent.
Michael T. Baker, Public Defender, Binghamton (Jonathan L. Rothermel of counsel), for appellant.
Michael A. Korchak, District Attorney, Binghamton (Geoffrey B. Rossi of counsel), for respondent.
Before: Lynch, J.P., Aarons, Pritzker, McShan and Mackey, JJ.
MEMORANDUM AND ORDER
Lynch, J.P. Appeal from a judgment of the County Court of Broome County (Joseph F. Cawley, J.), rendered September 21, 2021, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fourth degree.
In February 2020, defendant was charged by indictment with criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree and two counts of criminally using drug paraphernalia in the second degree. Following an unsuccessful motion to dismiss the indictment on statutory speedy trial grounds, defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree in full satisfaction of the indictment. As part of this negotiated plea agreement, defendant was required to waive his right to appeal. County Court thereafter sentenced defendant to the agreed-upon five-year term of probation. Defendant appeals. We affirm. Contrary to defendant's contentions, we find that he has validly waived his right to appeal. The record reveals that defendant was informed during the plea colloquy that the appeal waiver was a condition of his plea agreement and that this waiver was separate and distinct from the trial-related rights forfeited by the guilty plea, as to which defendant indicated his understanding and acceptance (see People v. Muller, 217 A.D.3d 1269, 1270, 192 N.Y.S.3d 306 [3d Dept. 2023] ; People v. Crampton, 201 A.D.3d 1020, 1021, 159 N.Y.S.3d 263 [3d Dept. 2022], lv denied 37 N.Y.3d 1160, 160 N.Y.S.3d 690, 181 N.E.3d 1118 [2022] ). Additionally, after conferring with counsel, defendant executed a detailed written appeal waiver that, although containing some overbroad language, expressly delineated the appellate rights that were not encompassed by the waiver and defendant affirmed that he had read, understood and had no questions relative thereto (see People v. Marshall, 206 A.D.3d 1377, 1378, 168 N.Y.S.3d 708 [3d Dept. 2022], lv denied 39 N.Y.3d 941, 177 N.Y.S.3d 537, 198 N.E.3d 780 [2022] ; People v. Gincerowski, 205 A.D.3d 1152, 1153, 165 N.Y.S.3d 918 [3d Dept. 2022] ; People v. Thompson, 193 A.D.3d 1186, 1186, 145 N.Y.S.3d 204 [3d Dept. 2021] ). As the combined oral and written waiver of appeal made clear that some appellate review survived, we are satisfied that defendant knowingly, intelligently and voluntarily waived his right to appeal (see People v. Drake, 217 A.D.3d 1273, 1273, 192 N.Y.S.3d 292 [3d Dept. 2023] ; People v. Defelice, 216 A.D.3d 1257, 1258, 188 N.Y.S.3d 788 [3d Dept. 2023], lv denied 40 N.Y.3d 933, 194 N.Y.S.3d 772, 215 N.E.3d 1213 [2023] ). This valid appeal waiver precludes defendant's argument that he was denied his statutory right to a speedy trial (see People v. Kidd, 210 A.D.3d 1148, 1149–1150, 177 N.Y.S.3d 785 [3d Dept. 2022], lv denied 39 N.Y.3d 1073, 183 N.Y.S.3d 801, 204 N.E.3d 437 [2023] ; People v. Dennis, 206 A.D.3d 1369, 1371, 168 N.Y.S.3d 905 [3d Dept. 2022] ; People v. Votaw, 190 A.D.3d 1162, 1164, 139 N.Y.S.3d 455 [3d Dept. 2021], lv denied 36 N.Y.3d 1101, 144 N.Y.S.3d 127, 167 N.E.3d 1262 [2021] ).
We are mindful that the model colloquy on the waiver of the right to appeal recommends that "if the court decided a CPL 30.30 [(speedy trial)] motion, it may wish to include that among the claims waived" (N.Y. Model Colloquies, Waiver of the Right to Appeal, at 3, https://www.nycourts.gov/judges/cji/8–Colloquies/Waiver_of_Right_to_Appeal.pdf [last accessed Oct. 23, 2023] [emphasis added]). That County Court did not do so here does not, as defendant asserts, undermine the validity of the appeal waiver. As stated in his brief, defendant characterized the speedy trial claim as "the most heavily litigated issue in the case." During the plea colloquy, defendant confirmed that he reviewed the waiver with his attorney, who answered any questions he had. The Court of Appeals has consistently emphasized that a trial court is not required to follow "any particular litany when apprising a defendant pleading guilty of the individual rights abandoned" ( People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; see People v. Thomas, 34 N.Y.3d 545, 559, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Bradshaw, 18 N.Y.3d 257, 265, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011] ). While the better practice would have been to specify that the appeal waiver included the speedy trial claim, we are satisfied that defendant was aware of and knowingly waived his right to appeal this claim.
Aarons, Pritzker, McShan and Mackey, JJ., concur. ORDERED that the judgment is affirmed.