| People v McCullen |
| 2018 NY Slip Op 04486 [162 AD3d 1661] |
| June 15, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Pierre McCullen, Appellant. |
Kathryn Friedman, Buffalo, for defendant-appellant.
John J. Flynn, District Attorney, Buffalo (Ashley R. Lowry of counsel), for respondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered January17, 2017. The judgment convicted defendant, upon his plea of guilty, of grand larceny in thefourth degree (two counts).
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 oftwo counts of grand larceny in the fourth degree (Penal Law § 155.30 [4]).Although defendant's contention that the plea was not knowingly, intelligently and voluntarilyentered survives his waiver of the right to appeal (see People v Gill, 149 AD3d 1597, 1597 [4th Dept 2017], lvdenied 29 NY3d 1127 [2017]), defendant failed to move to withdraw his guilty plea or tovacate the judgment of conviction and thus failed to preserve that contention for our review (see People v Morrison, 78 AD3d1615, 1616 [4th Dept 2010], lv denied 16 NY3d 834 [2011]). In any event,defendant's contention lacks merit, because his assertion that he did not understand the nature ofthe plea or its consequences is belied by the record of the plea proceeding (see People v Manor, 121 AD3d1581, 1582 [4th Dept 2014], affd 27 NY3d 1012 [2016]).
Defendant further contends that the approximately 18-month delay in sentencing him wasunreasonable as a matter of law (see generally CPL 380.30 [1]), and that such delayrequires vacatur of the judgment of conviction and dismissal of the indictment. Althoughdefendant's contention survives his waiver of the right to appeal (see People v Campbell,97 NY2d 532, 534-535 [2002]), defendant failed to preserve his contention for our reviewinasmuch as, when defendant appeared for sentencing, he made no objection or challenge to theproceeding (see People v Kerrick,136 AD3d 1099, 1100 [3d Dept 2016]; People v Washington, 121 AD3d 1583, 1583 [4th Dept 2014]). Inany event, we conclude that defendant's contention is without merit. The delay in sentencingdefendant is excusable because it was attributable to ongoing legal proceedings involving hiscodefendants, in which defendant was required to cooperate pursuant to the terms of the pleaagreement (see People vIngvarsdottir, 118 AD3d 1023, 1024 [2d Dept 2014]; People v Arroyo, 22 AD3d 881,882 [3d Dept 2005], lv denied 6 NY3d 773 [2006]). Present—Whalen, P.J., Carni,Lindley, DeJoseph and Winslow, JJ.