| People v Gilliam |
| 2012 NY Slip Op 04914 [96 AD3d 1650] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Tyray Gilliam,Appellant. |
—[*1] Tyray Gilliam, defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (William D. Walsh, J.), renderedMay 28, 2008. The judgment convicted defendant, upon his plea of guilty, of rape in the seconddegree. The judgment was affirmed by order of this Court entered July 1, 2011 (86 AD3d 923[2011]), and defendant on November 28, 2011 was granted leave to appeal to the Court ofAppeals from the order of this Court (17 NY3d 953 [2011]), and the Court of Appeals on May 8,2012 reversed the order and remitted the case to this Court for clarification of the basis of thisCourt's decision (19 NY3d 842 [2012]).
Now, upon remittitur from the Court of Appeals,
It is hereby ordered that, upon remittitur from the Court of Appeals, the judgment soappealed from is unanimously affirmed.
Memorandum: In a prior appeal (People v Gilliam, 86 AD3d 923 [2011], revd19 NY3d 842 [2012]), we summarily affirmed the judgment convicting defendant of rape inthe second degree (Penal Law § 130.30 [1]). Defendant had contended that his sentencewas unduly harsh and severe. In reversing our order, the Court of Appeals concluded that we maynot summarily affirm a judgment "without indicating whether [we] relied on the waiver [of theright to appeal] or determined that the sentencing claim lacked merit" (Gilliam, 19 NY3dat 844). The Court remitted the matter to this Court "for clarification of the basis of [our]decision" (id.).
Upon remittal, we conclude that defendant's unrestricted waiver of the right to appealencompassed his right to challenge the severity of the sentence (see People v Hidalgo, 91NY2d 733, 737 [1998]). To the extent that defendant in his pro se supplemental brief challenges"the denial of his CPL 190.80 motion for release on his own recognizance predicated on thealleged failure to indict him within 45 days of his arrest, we note that such a challenge becamemoot when the indictment was issued" (People v Phillips, 277 AD2d 816, 819 [2000],lv denied 96 NY2d 804 [2001]). The remaining contention of defendant in his pro sesupplemental brief, which concerns a matter raised in his omnibus motion, is not properly beforeus. That contention is also encompassed by [*2]defendant'sunrestricted waiver of the right to appeal and, in any event, "[t]he record reflects that defendantwithdrew his omnibus motion as part of the plea of guilty, thereby foreclosing our review of theissues raised therein" (People vThousand, 41 AD3d 1272, 1273 [2007], lv denied 9 NY3d 927 [2007]; see People v Williams, 55 AD3d759 [2008]; People v Gully, 17AD3d 382 [2005], lv denied 5 NY3d 763 [2005]). Present—Smith, J.P.,Centra, Carni and Sconiers, JJ.