| People v Oliveri |
| 2008 NY Slip Op 02276 [49 AD3d 1208] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David Oliveri,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Raymond C. Herman of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered April 13, 2005. The judgment convicted defendant, upon his plea of guilty, of rape inthe first 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 ofrape in the first degree (Penal Law § 130.35 [1]). Contrary to the contention of defendant,his waiver of the right to appeal was effective despite the fact that it was not reduced to writing,and we otherwise conclude that the waiver was knowingly, voluntarily, and intelligently entered(see People v Egan, 6 AD3d1206, 1206-1207 [2004], lv denied 3 NY3d 639 [2004]; People v Willis, 2 AD3d 1322[2003], lv denied 2 NY3d 748 [2004]). The waiver by defendant of the right to appealencompasses his challenge to Supreme Court's suppression rulings (see People v Kemp,94 NY2d 831, 833 [1999]), as well as his contentions that the indictment is not supported bylegally sufficient evidence and that he was denied due process during pretrial procedures (seePeople v Simms, 269 AD2d 788 [2000], lv denied 94 NY2d 952 [2000]).
Although a defendant's jurisdictional challenge survives both a guilty plea and waiver ofthe right to appeal (see People v Hansen, 95 NY2d 227, 230-231 [2000]; People v June, 30 AD3d 1016,1017 [2006], lv denied 7 NY3d 813, 868 [2006]), here we reject defendant'sjurisdictional challenge. The court acquired jurisdiction pursuant to a grand jury indictment, anddefendant challenges jurisdictional defects in the felony complaints rather than in the indictment.By pleading guilty, defendant forfeited his contention with respect to the defense of the statute oflimitations (see People v Hayes, 39AD3d 1173, 1175 [2007], lv denied 9 NY3d 923 [2007]; People v Gerber,182 AD2d 252, 260-261 [1992], lv denied 80 NY2d 1026 [1992]). Although the furthercontention of defendant that he was denied his constitutional right to a speedy trial survives bothhis waiver of the right to appeal and his plea of guilty (see Egan, 6 AD3d at 1207),defendant has raised that contention for the first time on appeal and therefore has failed topreserve it for our review (see People vRobinson, 1 AD3d 1019, 1020 [2003], lv denied 2 NY3d 745 [2004]). Thecontention of defendant that he was denied effective assistance of counsel "does not survive hisguilty plea or his waiver of the right to appeal because there was no showing that the pleabargaining process was infected by [the] allegedly ineffective assistance or that defendant enteredthe plea because of his attorney['s] allegedly poor [*2]performance" (People v Dean, 48 AD3d 1244, 1245 [2008] [internal quotationmarks omitted]).In addition, by pleading guilty, defendant forfeited his contentions with respect toalleged discovery violations, preindictment prosecutorial misconduct, and the People's failure topreserve evidence (see People v Di Raffaele, 55 NY2d 234, 240 [1982]; People v Mayo, 45 AD3d 1361,1362-1363 [2007]; Gerber, 182 AD2d at 260-261). We have reviewed defendant'sremaining contentions and conclude that none requires reversal. Present—Scudder, P.J.,Martoche, Centra, Fahey and Peradotto, JJ.