Opinion
12-23-2016
The PEOPLE of the State of New York, Respondent, v. Joshua A. GANG, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant–Appellant.
Joseph V. Cardone, District Attorney, Albion (Katherine Bogan of Counsel), for Respondent.
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM:Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the second degree (Penal Law § 140.25[2] ). Contrary to defendant's contention, the 18–month preindictment delay did not deprive him of due process (see generally People v. Singer, 44 N.Y.2d 241, 253–254, 405 N.Y.S.2d 17, 376 N.E.2d 179 ). It is well established that "a determination made in good faith to defer commencement of the prosecution for further investigation[,] or for other sufficient reasons, will not deprive the defendant of due process of law even though the delay may cause some prejudice to the defense" (Singer, 44 N.Y.2d at 254, 405 N.Y.S.2d 17, 376 N.E.2d 179 ). Here, the "investigative delays were satisfactorily explained and were permissible exercises of prosecutorial discretion" (People v. Nazario, 85 A.D.3d 577, 577, 926 N.Y.S.2d 433, lv. denied 17 N.Y.3d 904, 933 N.Y.S.2d 659, 957 N.E.2d 1163 ). Upon our review of the factors set forth in People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303, we conclude that the delay did not deprive defendant of his right to due process (see People v. Johnson, 134 A.D.3d 1388, 1389–1390, 22 N.Y.S.3d 265, affd. 28 N.Y.3d 1048, 43 N.Y.S.3d 245, 65 N.E.3d 1281 [2016] ).
With respect to defendant's remaining contentions, even assuming, arguendo, that defendant's waiver of the right to appeal was knowing, intelligent and voluntary, we agree with defendantthat the waiver does not encompass his challenge to the severity of the sentence because " ‘no mention was made on the record during the course of the allocution concerning the waiver of defendant's right to appeal his conviction’ that he was also waiving his right to appeal any issue concerning the severity of the sentence" (People v. Lorenz, 119 A.D.3d 1450, 1450, 988 N.Y.S.2d 904, lv. denied 24 N.Y.3d 962, 996 N.Y.S.2d 222, 20 N.E.3d 1002 ; see People v. Maracle, 19 N.Y.3d 925, 928, 950 N.Y.S.2d 498, 973 N.E.2d 1272 ). Nevertheless, we reject defendant's contention that his sentence is unduly harsh and severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.