| People v Avera |
| 2021 NY Slip Op 01804 [192 AD3d 1382] |
| March 25, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Robert Avera, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Schenectady County(Sypniewski, J.), rendered December 15, 2016, convicting defendant upon his plea of guilty ofthe crime of criminal sale of a controlled substance in the third degree.
As a result of his participation in two drug sales in Schenectady County, defendant wascharged in a six-count indictment. After County Court denied his motion to dismiss theindictment based on an alleged violation of his speedy trial rights, defendant pleaded guilty to areduced count of criminal sale of a controlled substance in the third degree in satisfaction of theindictment. The plea bargain included a negotiated sentence and restitution and requireddefendant to waive his right to appeal. County Court imposed the agreed-upon prison sentence ofsix years, to be followed by three years of postrelease supervision. Defendant appeals.
Initially, defendant's appeal waiver is invalid, as the written waiver is overbroad andinaccurate, and County Court's oral colloquy did not ensure that defendant knowingly,intelligently and voluntarily waived this important right (see People v Bisono, 36 NY3d 1013, 1017-1018 [2020]; People v Thomas, 34 NY3d 545,566 [2019]; People v Anderson, 184AD3d 1020, 1020-1021 [2020], lv denied 35 NY3d 1064 [2020]; People v Barrales, 179 AD3d1313, 1314-1315 [2020]). Nevertheless, due to defendant's failure to file an appropriatepostallocution motion, his challenges to the voluntariness of his plea, the factual sufficiency ofthe plea allocution and his claim of ineffective assistance of counsel—to the extent that itimpacts the voluntariness of his plea—are unpreserved for appellate review, and thenarrow exception to the preservation rule was not triggered here (see People v Anderson,184 AD3d at 1021; People v Sabin,179 AD3d 1401, 1402-1403 [2020], lv denied 35 NY3d 995 [2020]; People v Taft, 169 AD3d 1266,1267 [2019], lv denied 33 NY3d 1074 [2019]; People v Burks, 163 AD3d 1286, 1287 [2018], lv denied 32NY3d 1063 [2018]).
By pleading guilty, defendant forfeited his CPL 30.30 statutory speedy trial argument (see People v Duggins, 192 AD3d191, 195 [2021]; People v Fay,154 AD3d 1178, 1180 [2017], lv denied 30 NY3d 1115 [2018]; People v Irvis, 90 AD3d 1302,1303 [2011], lv denied 19 NY3d 962 [2012]). A review of whether defendant'sconstitutional right to a speedy trial has been violated by prearraignment delay includes factorssuch as the extent of the delay, the reason for the delay, the nature of the underlying charges, anyextended period of pretrial incarceration and any impairment of defendant's defense due to thedelay (see People v Lanfranco, 124AD3d 1144, 1145 [2015], lv denied 25 NY3d 1203 [2015]; People v Irvis, 90AD3d at 1303). Defendant did not address any of these factors in his motion; though he cited hisconstitutional speedy trial right, he focused on his statutory rights. Although the record containsno reason for the delay, a delay of approximately [*2]sevenmonths is not particularly lengthy, and longer delays have been found not to violate a defendant'sright to due process (see People vAcevedo, 179 AD3d 1397, 1400 [2020]; People v Lanfranco, 124 AD3d at1145). The charges of multiple sales of large quantities of drugs are relatively serious. Defendantwas released on bail and has not demonstrated impairment to any defense based on the delay."Accordingly, we discern no violation of defendant's constitutional right to a speedy trial"(People v Lanfranco, 124 AD3d at 1145).
Finally, we do not deem the agreed-upon sentence to be harsh or excessive. The sentence waswithin the statutory range for defendant, a second felony drug offender. The record reveals thatCounty Court considered defendant's circumstances before imposing sentence, and we find noextraordinary circumstances or abuse of discretion (see People v Cancer, 185 AD3d 1353, 1354 [2020]; People v Meddaugh, 150 AD3d1545, 1548 [2017]).
Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur. Ordered that the judgment isaffirmed.