Opinion
No. 111859
06-23-2022
The People of the State of New York, Respondent, v. Morris Dennis, Appellant.
Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for appellant. Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.
Calendar Date: June 2, 2022
Rural Law Center of New York, Castleton (Kristin A. Bluvas of counsel), for appellant.
Gary M. Pasqua, District Attorney, Canton (Matthew L. Peabody of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Reynolds Fitzgerald and McShan, JJ.
Egan Jr., J.
Appeal from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered September 23, 2019, convicting defendant upon his plea of guilty of the crime of attempted disseminating indecent material to minors in the first degree.
In June 2018, defendant was charged in a felony complaint with attempted disseminating indecent material to minors in the first degree. Thereafter, in September 2018, defendant's then counsel signed a waiver indicating that defendant was waiving his speedy trial rights under CPL 30.30. The waiver provided, in relevant part, that if defendant or counsel wished to rescind the waiver, the People would have "10 business days to [i]ndict" defendant (emphasis omitted). Counsel revoked the waiver in December 2018, and defendant was indicted and charged with one count of attempted disseminating indecent material to minors in the first degree in February 2019.
Following revocation of the waiver, a dispute arose as to the construction to be accorded to the phrase "10 business days to [i]ndict," prompting newly-appointed defense counsel to move to dismiss the indictment upon speedy trial grounds. County Court denied that motion and, after new counsel again was appointed, defendant pleaded guilty to the charged crime with the understanding that County Court would sentence him as a second felony offender to a prison term of 21 to 42 months. The plea agreement also required defendant to waive his right to appeal. County Court imposed the contemplated sentence, and this appeal ensued.
We affirm. Initially, we reject defendant's claim that the waiver of the right to appeal is invalid. County Court explained that the waiver of the right to appeal was separate and distinct from the trial-related rights that defendant was forfeiting by pleading guilty and expressly delineated those rights that would survive the appeal waiver (see People v Champion-Barse, 201 A.D.3d 1255, 1255 [2022]; People v Christy, 200 A.D.3d 1322, 1323 [2021]). Additionally, defendant executed a written waiver of appeal after conferring with counsel and, in response to County Court's inquiries, defendant assured the court that he had read the waiver, understood its contents and had no questions relative thereto (see People v Hall, 204 A.D.3d 1228, 1228 [2022]; People v Rivera, 201 A.D.3d 1132, 1133 [2022]). Under these circumstances, and as we otherwise discern no infirmities in the combined oral and written waiver (compare People v Thomas, 34 N.Y.3d 545, 562-563 [2019]), we find that defendant's waiver of the right to appeal was knowing, intelligent and voluntary. In light of the valid appeal waiver, defendant's challenge to the perceived severity of his sentence is precluded (see People v Whitton, 201 A.D.3d 1259, 1260 [2022]; People v Christy, 200 A.D.3d at 1323).
Defendant's claim that he was denied his statutory right to a speedy trial is precluded by his valid appeal waiver (see People v Rivera, 201 A.D.3d at 1133-1134; People v Lara-Medina, 195 A.D.3d 542, 542 [2021], lv denied 37 N.Y.3d 993 [2021]; People v Votaw, 190 A.D.3d 1162, 1164 [2021], lv denied 36 N.Y.3d 1101 [2021]) and, in any event, was forfeited by his guilty plea (see People v Forbes, 203 A.D.3d 949, 949 [2022], lv denied ___ N.Y.3d ___ [May 27, 2022]; People v Lara-Medina, 195 A.D.3d at 542). Contrary to defendant's assertion, the enactment of CPL 30.30 (6), which "provides that a statutory speedy trial claim shall be reviewable upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment was entered upon a plea of guilty" (People v George, 199 A.D.3d 831, 832 [2021] [internal quotation marks and brackets omitted], lv denied 38 N.Y.3d 927 [2022]), does not alter this result. The cited provision did not become effective until January 1, 2020, i.e., after defendant was sentenced in September 2019, and courts have consistently held that the statutory amendment does not apply retroactively (see People v Forbes, 203 A.D.3d at 949; People v George, 199 A.D.3d at 832; People v Lara-Medina, 195 A.D.3d at 542; People v Duggins, 192 A.D.3d 191, 195 [2021], lv denied 36 N.Y.3d 1096 [2021]). Moreover, although the amendment "unequivocally directs that appellate review of a [CPL] 30.30 claim shall no longer be forfeited by a guilty plea,... neither that phrase, nor any other language in the statute, precludes a voluntary waiver" (People v Person, 184 A.D.3d 447, 448 [2020], lv denied 35 N.Y.3d 1069 [2020]). Hence, defendant's statutory speedy trial claim is precluded by his valid appeal waiver (see People v Votaw, 190 A.D.3d at 1164). Defendant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.
Garry, P.J., Lynch, Reynolds Fitzgerald and McShan, JJ., concur.
ORDERED that the judgment is affirmed.