| People v Kerrick |
| 2016 NY Slip Op 01003 [136 AD3d 1099] |
| February 11, 2016 |
| Appellate Division, Third Department |
[*1](February 11, 2016)
| The People of the State of New York, Respondent, v Mickey Q. Kerrick, Appellant. |
Susan Patnode, Rural Law Center of New York, Castleton (Kelly L. Egan ofcounsel), for appellant.
Mary E. Rain, District Attorney, Canton (Ramy Louis of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered October 15, 2012, convicting defendant upon his plea of guiltyof the crimes of burglary in the second degree and criminal possession of a weapon in thethird degree.
In December 2010, defendant pleaded guilty to burglary in the second degree andcriminal possession of a weapon in the third degree in full satisfaction of a 12-countindictment and a superior court information. Pursuant to the plea agreement, defendantagreed to, and did, sign in open court a separate waiver of appeal for each of the crimesto which he pleaded guilty, admit at sentencing that he was a second felony offender andcooperate with the People in the prosecution of two codefendants. Following defendant'splea, County Court remanded him to jail and scheduled sentencing for March 2011 toallow the People to bring the codefendants' cases to trial.
In April 2011, defendant sought, by order to show cause, a release from custodypending the remaining prosecution of the second of defendant's two codefendants. Atthat time, County Court was informed that defendant already had testified against thefirst of his two codefendants, that the trial of his second codefendant had not yet beenscheduled and that defendant wanted to be sentenced as quickly as possible. CountyCourt denied the request, noting defendant's criminal history and that he would receivecredit for time served. By letter dated October 4, 2012, defendant informed County Courtthat he had yet to be sentenced and requested that the [*2]court schedule a sentencing date and impose the negotiatedsentence. On October 15, 2012, County Court sentenced defendant, as a second felonyoffender, to concurrent prison terms of seven years for the burglary in the second degreeconviction and 2
We affirm. Initially, defendant contends that the delay in sentencing was sounreasonable as to divest County Court of jurisdiction over him (see CPL 380.30[1]; People v Gilbert, 133AD3d 928, 929 [2015]). Although defendant informed County Court of the delay insentencing, defendant did not move to dismiss the indictment or superior courtinformation upon that ground or otherwise call into question County Court's jurisdictionto sentence him. Accordingly, although this claim is not barred by his appeal waiver(see People v Campbell, 97 NY2d 532, 534-535 [2002]; People v Brooks, 118 AD3d1123, 1124 [2014], lv denied 24 NY3d 959 [2014]), defendant failed topreserve the issue for our review (see People v Gilbert, 133 AD3d at 929;People v Brooks, 118 AD3d at 1124; People v Dissottle, 68 AD3d 1542, 1543 [2009], lvdenied 14 NY3d 799 [2010]). In any event, while "delays that are inexcusable andunduly long violate the statutory directive" (People v Tredeau, 117 AD3d 1344, 1345 [2014]; seePeople ex rel. Harty v Fay, 10 NY2d 374, 379 [1961]; People v Arroyo, 22 AD3d881, 882 [2005], lv denied 6 NY3d 773 [2006]), " 'a delay will beexcused where it is attributable to legal proceedings or conduct of the defendant whichaccentuates the delay' " (People v Ball, 68 AD3d 1148, 1149 [2009], quotingPeople v Arroyo, 22 AD3d at 882; see People v Campbell, 97 NY2d at534). Here, the approximately 18-month delay was attributable to ongoing legalproceedings involving the second of defendant's two codefendants in which defendantwas required to testify pursuant to the terms of the plea agreement (see People vArroyo, 22 AD3d at 882; see also People v Ball, 68 AD3d at 1149). Inaddition, because the delay was not inexcusably inordinate, and because defendant isentitled to credit for time served prior to sentencing (see generally Penal Law§ 70.30), were we to consider this claim, we would find no violation ofCPL 380.30.
We also reject defendant's contention that his waivers of the right to appeal wereinvalid. Even if there was an ambiguity in County Court's discussion of defendant'sappeal waivers, such ambiguity was resolved by the detailed, written waivers thatdefendant executed in open court and by the express terms of the pleaagreement—explained to, and acknowledged by, defendant on therecord—which required defendant to, among other things, execute two separateappeal waivers (see People vRamos, 7 NY3d 737, 738 [2006]; People v Devault, 124 AD3d 1140, 1140 [2015], lvdenied 25 NY3d 989 [2015]; People v Fling, 112 AD3d 1001, 1002 [2013], lvdenied 23 NY3d 1020 [2014]; but cf. People v Rabideau, 130 AD3d 1094, 1095 [2015]).Given our conclusion that defendant validly waived his right to appeal, we are precludedfrom considering his claim that the sentence imposed was excessive (see People v Vellon, 128AD3d 1274, 1275 [2015], lv denied 26 NY3d 1043 [2015]; People v Broomfield, 128AD3d 1271, 1272 [2015], lv denied 26 NY3d 1086 [2015]).
Peters, P.J., Garry, Rose and Clark, JJ., concur. Ordered that the judgment isaffirmed.