| People v Parris |
| 2013 NY Slip Op 03585 [106 AD3d 555] |
| May 21, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert Parris, Also Known as Robert Pariss,Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Megan R. Roberts of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Ralph Fabrizio, J., at speedy trial motion;Eugene Oliver, J., at plea and sentencing), rendered November 21, 2011, as amendedNovember 28, 2011, convicting defendant of criminal sale of a controlled substance inthe third degree, and sentencing him, as a second felony offender, to a term of threeyears, unanimously affirmed.
After considering the factors set forth in People v Taranovich (37 NY2d 442,445 [1975]), we conclude that the court properly denied defendant's constitutionalspeedy trial motion. Although there was a delay of 33 months between defendant's arrestand conviction, and defendant was incarcerated for that entire period, the chargesinvolved multiple undercover sales, including two class A-1 felonies, made over thecourse of an extensive investigation. Furthermore, defendant has not asserted that thedelay caused any specific prejudice.
The most significant factor supporting denial of the motion is that defendant has notshown what, if any, portion of the delay was attributable to the People. On the contrary,the record indicates that most of the delay was caused by motion practice, adjournmentrequests by defense counsel and by defendant's own actions in filing 15 pro se motionsand repeatedly obtaining new counsel. Defendant suggests that the justices presidingover his case should have exercised their discretion under People v Rodriguez(95 NY2d 497, 501-503 [2000]) to curtail his pro se motion practice. However, to usedelay plainly attributable to a defendant as a basis for dismissal, under a theory that thecourt should have prevented the defendant from delaying his or her own case, wouldonly encourage defendants to attempt to delay their cases in hope of being rewarded withdismissals.
In addition, there was no unlawful prearrest delay. Although the first undercover salewas made more than 15 months before defendant's arrest, there were nine additional drugtransactions during that period. Since defendant was a suspect in an ongoing undercovernarcotics investigation, the People had a good faith reason to delay his prosecution on thefirst drug sale (see People vDecker, 13 NY3d 12 [2009]).
Defendant's excessive sentence claim is properly before this court, notwithstandingdefendant's purported waiver of his right to appeal, because we find the waiver invalid.[*2]Although defendant signed a written waiver, therewas not the requisite oral colloquy to confirm defendant's understanding of its contents(see e.g. People v Bradshaw, 18 NY3d 257 [2011]). However, weperceive no basis for reducing the sentence. Concur—Mazzarelli, J.P., Sweeny,Freedman and Gische, JJ.