| People v Chinn |
| 2013 NY Slip Op 01658 [104 AD3d 1167] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Sam Chinn, III, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (J. Kevin Mulroy, J.),rendered July 23, 1997. The judgment convicted defendant, upon his plea of guilty, ofmurder in the first degree and murder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals pro se from a judgment convicting him upon hisplea of guilty of murder in the first degree (Penal Law § 125.27 [1] [a] [viii]; [b])and murder in the second degree (§ 125.25 [1]). We reject defendant's contentionthat his waiver of the right to appeal was invalid. "[T]he record establishes that heknowingly, intelligently and voluntarily waived his right to appeal as a condition of theplea bargain" (People vHicks, 89 AD3d 1480, 1480 [2011], lv denied 18 NY3d 924 [2012]),and County Court " 'engage[d] the defendant in an adequate colloquy to ensure that thewaiver of the right to appeal was a knowing and voluntary choice' " (id.). Therecord also establishes that defendant "understood that the right to appeal is separate anddistinct from those rights automatically forfeited upon a plea of guilty" (id. at1481 [internal quotation marks omitted]).
Defendant further contends that his plea was involuntarily entered due to coercivestatements made to him by the court. Although that contention survives the valid waiverof the right to appeal and is preserved for our review (cf. People v Williams, 91 AD3d 1299, 1299 [2012]; People v Moore, 59 AD3d983, 984 [2009], lv denied 12 NY3d 857 [2009]), we conclude thatdefendant's "plea was knowingly, voluntarily, and intelligently entered" (People v Knoxsah, 94 AD3d1505, 1505-1506 [2012]; see generally People v Shubert, 83 AD3d 1577, 1578[2011]). Defendant's "responses to County Court's inquiries were sufficient to establishboth his guilt and that the plea as a whole was knowing, intelligent and voluntary" (People v Davis, 84 AD3d1645, 1646 [2011], lv denied 17 NY3d 815 [2011]). Although defendantmay have decided to plead guilty and be sentenced to life without parole out of fear thathe would be sentenced to death if convicted after trial, that decision was a consequenceof his own actions, having killed two people and confessing those crimes to the police inwriting and on videotape. It cannot be said that the court, by advising defendant of themaximum punishment for capital murder, thereby coerced him into pleading guilty.
Defendant's contention "that exculpatory evidence was improperly withheld fromhim" [*2]and thus that there was a Bradyviolation is raised for the first time on appeal and therefore is unpreserved for ourreview (People v Hayes, 71AD3d 1187, 1189 [2010], lv denied 15 NY3d 852 [2010],reconsideration denied 15 NY3d 921 [2010]; see People v Johnson, 60 AD3d 1496, 1497 [2009], lvdenied 12 NY3d 926 [2009]). Moreover, defendant forfeited any such contention bypleading guilty (see People vKidd, 100 AD3d 779, 779 [2012]; People v Philips, 30 AD3d 621, 621 [2006], lv denied8 NY3d 949 [2007], reconsideration denied 8 NY3d 989 [2007]; Peoplev Knickerbocker, 230 AD2d 753, 753-754 [1996], lv denied 89 NY2d 943[1997]). In any event, defendant's contention lacks merit, inasmuch as the recordestablishes that no arguably exculpatory evidence was withheld from defendant prior tothe entry of his plea of guilty.
Defendant further contends that this Court's rules imposing the burden of preparingthe appellate record on defendants-appellants are unconstitutional and that, as a result, hehas been denied a fair opportunity for appellate review. That contention is encompassedby defendant's waiver of the right to appeal (see generally People v Muniz, 91NY2d 570, 574 [1998]) and, in any event, lacks merit. Similarly, defendant's waiver ofthe right to appeal "encompasses his challenges to the court's suppression rulings" (People v Mitchell, 93 AD3d1173, 1174 [2012], lv denied 19 NY3d 999 [2012]; see People vKemp, 94 NY2d 831, 833 [1999]). We note in any event that, "[r]egardless ofwhether defendant made a valid waiver of his right to appeal, . . . [his]argument[s] concerning the suppression hearing [are] unavailing" (People v Caviness, 95 AD3d622, 622 [2012], lv denied 19 NY3d 995 [2012]).
Defendant failed to preserve for our review his contention that the integrity of thesuppression hearing was compromised because the prosecutor improperly coached one ofhis suppression hearing witnesses and the suppression court failed to maintainimpartiality (see generallyPeople v Martin, 96 AD3d 1637, 1638 [2012], lv denied 19 NY3d 998[2012]). In any event, there is no indication in the record that any suppression witnesswas improperly prepared to testify or that the court was biased. Further, defendant'scontention that the indictment was defective because the People improperly re-presentedthe case to the grand jury to obtain first degree murder charges was forfeited by his guiltyplea (see People v Batista, 299 AD2d 270, 270 [2002], lv denied 99NY2d 626 [2003]; see alsoPeople v Mercer, 81 AD3d 1159, 1160 [2011], lv denied 19 NY3d 999[2012]), and is also precluded by his waiver of the right to appeal (see Mercer, 81AD3d at 1160; People vBuckler, 80 AD3d 889, 890 [2011], lv denied 17 NY3d 804 [2011]).
Finally, defendant's contentions that he was denied his constitutional right to aspeedy trial and his due process right to prompt prosecution survive the plea and waiverof the right to appeal (seePeople v Cain, 55 AD3d 1271 [2008], lv denied 11 NY3d 896 [2008]),but they are unpreserved for our review because defendant "failed to move to dismiss theindictment on those grounds" (People v Smith, 48 AD3d 1095, 1096 [2008], lv denied10 NY3d 870 [2008]; see People v Kemp, 270 AD2d 927, 927 [2000], lvdenied 95 NY2d 836 [2000]). In any event, defendant's contentions lack merit.Defendant was indicted less than three months after the murders, and any delay afterindictment was largely due to voluminous pretrial motions filed by the defense. In fact,defendant moved pro se to extend the time to file motions. A suppression hearing wasexpeditiously conducted, and further defense motions were made and decided. Althoughdefendant was incarcerated between the time of his arrest on November 16, 1995 and hisplea on July 2, 1997, that delay was not inordinate given that this was a capital case, andthere is no evidence that the defense was impaired by reason of any delay (see generally People v Decker,13 NY3d 12, 14-16 [2009]; People v Taranovich, 37 NY2d 442, 445[1975]). Present—Smith, J.P., Peradotto, Lindley, Whalen and Martoche, JJ.