Opinion
2013-03-15
The PEOPLE of the State of New York, Respondent, v. Sam CHINN, III, Defendant–Appellant.
Sam Chinn, III, Defendant–Appellant Pro Se. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
Sam Chinn, III, Defendant–Appellant Pro Se. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals pro se from a judgment convicting him upon his plea of guilty of murder in the first degree (Penal Law § 125.27[1][a][viii]; [b] ) and murder in the second degree (§ 125.25[1] ). We reject defendant's contention that his waiver of the right to appeal was invalid. “[T]he record establishes that he knowingly, intelligently and voluntarily waived his right to appeal as a condition of the plea bargain” ( People v. Hicks, 89 A.D.3d 1480, 1480, 932 N.Y.S.2d 412,lv. denied18 N.Y.3d 924, 942 N.Y.S.2d 463, 965 N.E.2d 965), and County Court “ ‘engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice’ ” ( id.). The record also establishes that defendant “understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty” ( id. at 1481, 932 N.Y.S.2d 412 [internal quotation marks omitted] ).
Defendant further contends that his plea was involuntarily entered due to coercive statements made to him by the court. Although that contention survives the valid waiver of the right to appeal and is preserved for our review ( cf. People v. Williams, 91 A.D.3d 1299, 1299, 937 N.Y.S.2d 506;People v. Moore, 59 A.D.3d 983, 984, 874 N.Y.S.2d 341,lv. denied12 N.Y.2d 857, 881 N.Y.S.2d 668, 909 N.E.2d 591), we conclude that defendant's “plea was knowingly, voluntarily, and intelligently entered” ( People v. Knoxsah, 94 A.D.3d 1505, 1505–1506, 942 N.Y.S.2d 749;see generally People v. Shubert, 83 A.D.3d 1577, 1578, 921 N.Y.S.2d 431). Defendant's “responses to County Court's inquiries were sufficient to establish both his guilt and that the plea as a whole was knowing, intelligent and voluntary” ( People v. Davis, 84 A.D.3d 1645, 1646, 923 N.Y.S.2d 364,lv. denied17 N.Y.3d 815, 929 N.Y.S.2d 804, 954 N.E.2d 95). Although defendant may have decided to plead guilty and be sentenced to life without parole out of fear that he would be sentenced to death if convicted after trial, that decision was a consequence of his own actions, having killed two people and confessing those crimes to the police in writing and on videotape. It cannot be said that the court, by advising defendant of the maximum punishment for capital murder, thereby coerced him into pleading guilty.
Defendant's contention “that exculpatory evidence was improperly withheld from him” and thus that there was a Brady violation is raised for the first time on appeal and therefore is unpreserved for our review ( People v. Hayes, 71 A.D.3d 1187, 1189, 896 N.Y.S.2d 225,lv. denied15 N.Y.3d 852, 909 N.Y.S.2d 29, 935 N.E.2d 821,reconsideration denied15 N.Y.3d 921, 913 N.Y.S.2d 647, 939 N.E.2d 813;see People v. Johnson, 60 A.D.3d 1496, 1497, 876 N.Y.S.2d 282,lv. denied12 N.Y.3d 926, 884 N.Y.S.2d 707, 912 N.E.2d 1088). Moreover, defendant forfeited any such contention by pleading guilty ( see People v. Kidd, 100 A.D.3d 779, 779, 953 N.Y.S.2d 863;People v. Philips, 30 A.D.3d 621, 621, 817 N.Y.S.2d 373,lv. denied8 N.Y.3d 949, 836 N.Y.S.2d 559, 868 N.E.2d 242,reconsideration denied8 N.Y.3d 989, 838 N.Y.S.2d 492, 869 N.E.2d 668;People v. Knickerbocker, 230 A.D.2d 753, 753–754, 646 N.Y.S.2d 171,lv. denied89 N.Y.2d 943, 655 N.Y.S.2d 894, 678 N.E.2d 507). In any event, defendant's contention lacks merit, inasmuch as the record establishes that no arguably exculpatory evidence was withheld from defendant prior to the entry of his plea of guilty.
Defendant further contends that this Court's rules imposing the burden of preparing the appellate record on defendants-appellants are unconstitutional and that, as a result, he has been denied a fair opportunity for appellate review. That contention is encompassed by defendant's waiver of the right to appeal ( see generally People v. Muniz, 91 N.Y.2d 570, 574, 673 N.Y.S.2d 358, 696 N.E.2d 182) and, in any event, lacks merit. Similarly, defendant's waiver of the right to appeal “encompasses his challenges to the court's suppression rulings” ( People v. Mitchell, 93 A.D.3d 1173, 1174, 940 N.Y.S.2d 393,lv. denied19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921;see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754). We note in any event that, “[r]egardless of whether defendant made a valid waiver of his right to appeal, ... [his] argument[s] concerning the suppression hearing [are] unavailing” ( People v. Caviness, 95 A.D.3d 622, 622, 943 N.Y.S.2d 882,lv. denied19 N.Y.3d 995, 951 N.Y.S.2d 471, 975 N.E.2d 917).
Defendant failed to preserve for our review his contention that the integrity of the suppression hearing was compromised because the prosecutor improperly coached one of his suppression hearing witnesses and the suppression court failed to maintain impartiality ( see generally People v. Martin, 96 A.D.3d 1637, 1638, 946 N.Y.S.2d 798,lv. denied19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920). In any event, there is no indication in the record that any suppression witness was improperly prepared to testify or that the court was biased. Further, defendant's contention that the indictment was defective because the People improperly re-presented the case to the grand jury to obtain first degree murder charges was forfeited by his guilty plea ( see People v. Batista, 299 A.D.2d 270, 270, 753 N.Y.S.2d 47,lv. denied99 N.Y.2d 626, 760 N.Y.S.2d 106, 790 N.E.2d 280;see also People v. Mercer, 81 A.D.3d 1159, 1160, 917 N.Y.S.2d 397,lv. denied19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921), and is also precluded by his waiver of the right to appeal ( see Mercer, 81 A.D.3d at 1160, 917 N.Y.S.2d 397;People v. Buckler, 80 A.D.3d 889, 890, 914 N.Y.S.2d 773,lv. denied17 N.Y.3d 804, 929 N.Y.S.2d 564, 953 N.E.2d 802).
Finally, defendant's contentions that he was denied his constitutional right to a speedy trial and his due process right to prompt prosecution survive the plea and waiver of the right to appeal ( see People v. Cain, 55 A.D.3d 1271, 864 N.Y.S.2d 346,lv. denied11 N.Y.3d 896, 873 N.Y.S.2d 272, 901 N.E.2d 766), but they are unpreserved for our review because defendant “failed to move to dismiss the indictment on those grounds” ( People v. Smith, 48 A.D.3d 1095, 1096, 849 N.Y.S.2d 851,lv. denied10 N.Y.3d 870, 860 N.Y.S.2d 497, 890 N.E.2d 260;see People v. Kemp, 270 A.D.2d 927, 927, 706 N.Y.S.2d 654,lv. denied95 N.Y.2d 836, 713 N.Y.S.2d 143, 735 N.E.2d 423). In any event, defendant's contentions lack merit. Defendant was indicted less than three months after the murders, and any delay after indictment was largely due to voluminous pretrial motions filed by the defense. In fact, defendant moved pro se to extend the time to file motions. A suppression hearing was expeditiously conducted, and further defense motions were made and decided. Although defendant was incarcerated between the time of his arrest on November 16, 1995 and his plea on July 2, 1997, that delay was not inordinate given that this was a capital case, and there is no evidence that the defense was impaired by reason of any delay ( see generally People v. Decker, 13 N.Y.3d 12, 14–16, 884 N.Y.S.2d 662, 912 N.E.2d 1041;People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.