| People v Diallo |
| 2011 NY Slip Op 07178 [88 AD3d 511] |
| October 13, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v AlphaDiallo, Also Known as Alpha Ismael Diallo, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (T. Charles Won of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered October 29, 2009,convicting defendant, upon his plea of guilty, of criminal possession in the fourth degree, andsentencing him to a term of 1 to 3 years, unanimously affirmed.
Defendant claims that, at the time of the plea allocution, the court was obligated to askdefendant if he understood he was giving up any psychiatric defense. Initially we note thatdefendant has not moved to withdraw his guilty plea. Moreover, this case does not come withinthe narrow exception to the preservation requirement (see People v Lopez, 71 NY2d 662[1988]), because there was nothing in the plea allocution that cast doubt on defendant's guilt orraised any defense, psychiatric or otherwise. Accordingly, this claim is unpreserved and wedecline to review it in the interest of justice.
As an alternative holding, we also reject it on the merits. The record establishes thatdefendant's plea was knowing, intelligent and voluntary. Defendant's mental capacity to standtrial had already been established in proceedings under CPL article 730. Defendant cites toproceedings, before a different justice, relating to a possible defense of lack of responsibility byreason of mental disease or defect (see Penal Law § 40.15). However, nothingoccurred at the plea proceeding that would trigger a duty on the court to inquire about a waiver ofsuch a defense (see e.g. People vFiallo, 6 AD3d 176, 177 [2004], lv denied 3 NY3d 640 [2004]).
Defendant made a valid waiver of his right to appeal, in a colloquy with the court as well asin writing (see People v Ramos, 7NY3d 737 [2006]; People vLopez, 6 NY3d 248 [2006]). That waiver forecloses review of defendant's contentionthat the sentence was harsh and excessive. As an alternative holding, we perceive no basis forreducing the sentence.
Defendant's constitutional speedy trial claim survives both his guilty plea and his appealwaiver, but it is nevertheless unreviewable. Defense counsel's speedy trial motion was madeentirely on statutory rather than constitutional grounds (see People v Jeffries, 62 AD3d 530 [2009], lv denied 13NY3d 745 [2009]), and defendant abandoned his unresolved pro se motions [*2]asserting constitutional speedy trial claims (see People v Berry, 15 AD3d 233,234 [2005], lv denied 4 NY3d 883 [2005]). In any event, we find no violation ofdefendant's constitutional right to a speedy trial (see People v Taranovich, 37 NY2d 442[1975]). Concur—Catterson, J.P., Richter, Manzanet-Daniels and RomÁn, JJ.