| People v Gessner |
| 2017 NY Slip Op 08136 [155 AD3d 1668] |
| November 17, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Eric R.Gessner, Appellant. |
Linda M. Campbell, Syracuse, for defendant-appellant.
Gregory S. Oakes, District Attorney, Oswego (Amy L. Hallenbeck of counsel), forrespondent.
Appeal from a judgment of the Oswego County Court (Donald E. Todd, J.), rendered January29, 2015. The judgment convicted defendant, upon his plea of guilty, of attempted sexual abusein the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofattempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65 [1]).Defendant's contention that the People acted vindictively in presenting the felony charge to thegrand jury was forfeited by his plea of guilty (see People v Taylor, 65 NY2d 1, 5 [1985];People v Rodriguez, 55 NY2d 776, 777 [1981]) and, in any event, is encompassed by hisvalid and unrestricted waiver of the right to appeal (see generally People v Parker, 151 AD3d 1876, 1876 [4th Dept2017]; People v Gilliam, 96 AD3d1650, 1650-1651 [4th Dept 2012], lv denied 19 NY3d 1026 [2012]). Contrary todefendant's contention, "[t]he record establishes that County Court engage[d] [him] in anadequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntarychoice . . . , and informed him that the waiver was a condition of the pleaagreement" (People v Snyder, 151AD3d 1939, 1939 [4th Dept 2017] [internal quotation marks omitted]). The record furtherestablishes that the court was aware of defendant's traumatic brain injury (TBI) and took pains toensure that the TBI did not impair defendant's ability to understand the plea or the waiver of theright to appeal. The plea colloquy establishes, moreover, that the waiver of the right to appealwas knowing, voluntary, and intelligent despite defendant's TBI (see People v Scott, 144 AD3d1597, 1598 [4th Dept 2016], lv denied 28 NY3d 1150 [2017]; People v DeFazio, 105 AD3d1438, 1439 [4th Dept 2013], lv denied 21 NY3d 1015 [2013]).
Defendant's constitutional speedy trial claim survives both his plea of guilty and his validwaiver of the right to appeal (see Peoplev Romeo, 47 AD3d 954, 957 [2d Dept 2008], affd 12 NY3d 51 [2009], certdenied 558 US 817 [2009]), but the record supports the court's determination that defendantabandoned that claim by presenting no evidence and making no arguments in support of it(see People v Smith, 249 AD2d 426, 427 [2d Dept 1998], lv denied 92 NY2d 906[1998]; see generally People vPaduano, 84 AD3d 1730, 1730-1731 [4th Dept 2011]).
By pleading guilty, defendant forfeited his right to appellate review of his contention that thePeople violated the notice requirement of CPL 710.30 with respect to the victim's identification(see People v Perkins, 140 AD3d1401, 1403 [3d Dept 2016], lv denied 28 NY3d 1126 [2016], deniedreconsideration 29 NY3d 951 [2017]; People v La Bar, 16 AD3d 1084, 1084 [4th Dept 2005], lvdenied 5 NY3d 764 [2005]). In any event, that contention is also encompassed by his validwaiver of the right to appeal (see Peoplev Lopez, 118 AD3d 1190, 1191 [3d Dept 2014], lv denied 24 NY3d 1003[2014]), as is his related contention that the court should have suppressed the victim'sidentification (see People vWeinstock, 129 AD3d 1663, [*2]1663 [4th Dept 2015],lv denied 26 NY3d 1012 [2015]; People v Krouth, 115 AD3d 1354, 1354 [4th Dept 2014], lvdenied 23 NY3d 1064 [2014]). Present—Whalen, P.J., Smith, Lindley, NeMoyer andCurran, JJ.