| People v Williams |
| 2014 NY Slip Op 06388 [120 AD3d 1526] |
| September 26, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vSherrell Williams, Appellant. (Appeal No. 1.) |
Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.),rendered September 15, 2008. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of forgery devices.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon his plea of guilty of criminal possession of forgery devices (Penal Law§ 170.40 [2]) and, in appeal No. 2, he appeals from a judgment convictinghim upon his plea of guilty of identity theft in the first degree (§ 190.80[1]). Both pleas were entered during one plea proceeding, during which defendantwaived his right to appeal. We reject defendant's challenge in both appeals to the validityof the waiver of the right to appeal (see People v Lopez, 6 NY3d 248, 256 [2006]; People vCallahan, 80 NY2d 273, 283 [1992]). "The written waiver of the right to appeal,together with defendant's responses during the plea proceeding, establish that the waiverwas voluntarily, knowingly, and intelligently entered" (People v Griner, 50 AD3d1557, 1558 [2008], lv denied 11 NY3d 737 [2008]; see People v Ramos, 7 NY3d737, 738 [2006]). The valid waiver of the right to appeal encompasses defendant'scontention in appeal No. 1 with respect to County Court's suppression ruling (seePeople v Kemp, 94 NY2d 831, 833 [1999]).
Defendant's constitutional speedy trial claim raised with respect to both appealssurvives the plea and the valid waiver of the right to appeal (see People v Chinn, 104 AD3d1167, 1169 [2013], lv denied 21 NY3d 1014 [2013]; see also Lopez,6 NY3d at 255), but it is unpreserved for our review with respect to appeal No. 2 becausedefendant never moved to dismiss the superior court information (see Chinn, 104AD3d at 1169; People v Kwiatkowski, 263 AD2d 552, 552 [1999], lvdenied 93 NY2d 1021 [1999]). We decline to exercise our power to review thecontention with respect to appeal No. 2 as a matter of discretion in the interest of justice(see CPL 470.15 [3] [c]). With respect to appeal No. 1, defendant contends thatthe 14-month delay from the time the search warrant was executed until he was indicteddeprived him of his right to due process. In determining whether there has been anunconstitutional delay in commencing a prosecution, we must examine "(1) the extent ofthe delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4)whether or not there has been an extended period of pretrial incarceration; and (5)whether or not there is any indication that the defense has been impaired by reason of thedelay" (People v Taranovich, 37 NY2d 442, 445 [1975]; see People v Pulvino, 115AD3d 1220, 1222 [2014], lv denied 23 NY3d 1024 [2014]). Uponconsidering the Taranovich factors, we conclude that the delay did not deprivedefendant of his right to due process (see People v White, 108 AD3d 1236, 1237 [2013], lvdenied 22 NY3d 1044 [2013]). We note in particular that the indictmentencompassed charges that occurred several months after the warrant was executed. Inaddition, the People established that the investigation was ongoing during the relevanttime period, and it included attempting to locate a primary witness who disappeared afterbeing arrested and released on an appearance [*2]ticket,and conducting photo array identification procedures and forensic analysis of the seizedcomputer. Present—Scudder, P.J., Smith, Centra, Fahey and Peradotto, JJ.