Opinion
253 KA 17–00537
06-07-2019
The PEOPLE of the State of New York, Respondent, v. Branden HARDY, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (JULIE BENDER FISKE OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER 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 of burglary in the second degree ( Penal Law § 140.25 [2 ] ). Contrary to defendant's contention, we conclude that "the waiver of the right to appeal was not rendered invalid based on [Supreme Court's] failure to require defendant to articulate the waiver in his own words" ( People v. Scheifla , 166 A.D.3d 1531, 1532, 85 N.Y.S.3d 826 [4th Dept. 2018], lv denied 32 N.Y.3d 1177, 97 N.Y.S.3d 613, 121 N.E.3d 241 [2019] [internal quotation marks omitted]; see People v. Ludlow , 42 A.D.3d 941, 942, 840 N.Y.S.2d 859 [4th Dept. 2007] ).
Defendant's contention that he was denied his statutory right to a speedy trial is foreclosed by his guilty plea (see People v. Hansen , 95 N.Y.2d 227, 231 n 3, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Badding , 107 A.D.3d 1453, 1454, 965 N.Y.S.2d 908 [4th Dept. 2013] ; People v. Paduano , 84 A.D.3d 1730, 1730, 922 N.Y.S.2d 726 [4th Dept. 2011] ; see generally CPL 30.30 ) and, in any event, the contention does not survive the valid waiver of his right to appeal (see Badding , 107 A.D.3d at 1454, 965 N.Y.S.2d 908 ; Paduano , 84 A.D.3d at 1730, 922 N.Y.S.2d 726 ). Defendant's further contention that the court erred in refusing to suppress his statement to the police is likewise foreclosed by his valid appeal waiver (see People v. Kemp , 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754 [1999] ; People v. Lindsay , 162 A.D.3d 1647, 1648, 75 N.Y.S.3d 453 [4th Dept. 2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 865, 109 N.E.3d 1165 [2018] ).
Defendant also contends that he was denied his constitutional right to a speedy trial. At the time that defendant entered his plea, however, the court had decided only that part of his speedy trial motion concerning the statutory right. Because defendant pleaded guilty before the court decided his constitutional speedy trial claim, we conclude that he abandoned that claim. As a consequence, defendant is "foreclosed from pursuing the merits of [it] on appeal" ( People v. Alexander , 82 A.D.3d 619, 624, 920 N.Y.S.2d 47 [1st Dept. 2011], affd 19 N.Y.3d 203, 947 N.Y.S.2d 386, 970 N.E.2d 409 [2012] ).