Opinion
222 KA 19-00331
05-05-2023
The PEOPLE of the State of New York, Respondent, v. William MORRISON, Defendant-Appellant.
STEPHANIE R. DIGIORGIO, UTICA, FOR DEFENDANT-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (HANNAH STITH LONG OF COUNSEL), FOR RESPONDENT.
STEPHANIE R. DIGIORGIO, UTICA, FOR DEFENDANT-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (HANNAH STITH LONG OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, OGDEN, AND GREENWOOD, 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 rape in the first degree ( Penal Law § 130.35 [1] ). After a previous trial on the indictment, defendant was convicted of, inter alia, rape in the first degree, and this Court affirmed his conviction ( People v. Morrison , 90 A.D.3d 1554, 935 N.Y.S.2d 234 [4th Dept. 2011], lv denied 19 N.Y.3d 1028, 953 N.Y.S.2d 561, 978 N.E.2d 113 [2012], reconsideration denied 20 N.Y.3d 934, 957 N.Y.S.2d 694, 981 N.E.2d 291 [2012] ). Thereafter, we granted defendant's motion for a writ of error coram nobis ( People v. Morrison , 128 A.D.3d 1424, 6 N.Y.S.3d 925 [4th Dept. 2015] ). In March 2017, we reversed the judgment and granted a new trial based on an O'Rama error, and on June 28, 2018, the Court of Appeals affirmed our decision ( People v. Morrison , 148 A.D.3d 1707, 50 N.Y.S.3d 673 [4th Dept. 2017], affd 32 N.Y.3d 951, 84 N.Y.S.3d 819, 109 N.E.3d 1119 [2018] ). Defendant then entered an Alford plea to rape in the first degree in satisfaction of all charges in the indictment, with a promised sentence of a determinate term of incarceration of 14 years with 5 years’ postrelease supervision. County Court indicated that the parties and the court understood that defendant would have served that sentence by the time of sentencing the following month, but the court stated that it had to verify that with the Department of Corrections and Community Supervision (DOCCS).
On appeal, defendant contends that the plea was not knowingly, intelligently, and voluntarily entered and that his constitutional right to a speedy trial was violated. Inasmuch as both claims would survive even a valid waiver of the right to appeal, we need not address the validity of defendant's waiver of the right to appeal (see People v. Davis , 206 A.D.3d 1603, 1604, 167 N.Y.S.3d 894 [4th Dept. 2022] ; People v. Gumpton , 199 A.D.3d 1485, 1485, 154 N.Y.S.3d 896 [4th Dept. 2021] ; People v. Gessner , 155 A.D.3d 1668, 1669, 64 N.Y.S.3d 822 [4th Dept. 2017] ; People v. Williams , 120 A.D.3d 1526, 1526-1527, 993 N.Y.S.2d 196 [4th Dept. 2014], lv denied 24 N.Y.3d 1090, 1 N.Y.S.3d 16, 17, 25 N.E.3d 353, 354 [2014]). Defendant contends that he did not receive the benefit of the plea bargain inasmuch as the court allowed him to remain incarcerated beyond the sentencing date, and thus the plea was involuntarily entered. As defendant correctly concedes, he failed to preserve that contention for our review because he never moved to withdraw the plea or to vacate the judgment of conviction (see People v. Diggs , 129 A.D.3d 1675, 1675-1676, 12 N.Y.S.3d 475 [4th Dept. 2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 603, 40 N.E.3d 581 [2015] ). In any event, we conclude that defendant's contention is without merit. Defendant received the benefit of the plea bargain inasmuch as he was sentenced to the promised sentence (see id. at 1676, 12 N.Y.S.3d 475 ). The expectation that defendant would be released on the date of sentencing was not a promise to do so inasmuch as the court indicated that DOCCS had the final decision on that matter.
Defendant further contends that his constitutional right to a speedy trial was violated when the court repeatedly adjourned the matter during the pendency of the People's appeal to the Court of Appeals from the decision of this Court remitting the matter for a new trial. Defendant's contention is not preserved for our review because he never moved to dismiss the indictment on that ground or even objected to the adjournments (see People v. Minwalkulet , 198 A.D.3d 1290, 1292-1293, 153 N.Y.S.3d 731 [4th Dept. 2021], lv denied 37 N.Y.3d 1147, 159 N.Y.S.3d 341, 180 N.E.3d 505 [2021] ; People v. Burke , 197 A.D.3d 967, 969, 153 N.Y.S.3d 338 [4th Dept. 2021], lv denied 37 N.Y.3d 1159, 160 N.Y.S.3d 688, 181 N.E.3d 1116 [2022] ; Williams , 120 A.D.3d at 1526, 993 N.Y.S.2d 196 ). In any event, 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 (1975), we conclude that defendant was not denied his constitutional right to a speedy trial (see Minwalkulet , 198 A.D.3d at 1293, 153 N.Y.S.3d 731 ; People v. Kennedy , 78 A.D.3d 1477, 1479, 910 N.Y.S.2d 602 [4th Dept. 2010], lv denied 16 N.Y.3d 798, 919 N.Y.S.2d 515, 944 N.E.2d 1155 [2011] ). Inasmuch as any motion to dismiss the indictment on the ground that defendant was denied his constitutional right to a speedy trial would not have succeeded, we reject defendant's further contention that defense counsel was ineffective in failing to make such a motion (see Minwalkulet , 198 A.D.3d at 1293, 153 N.Y.S.3d 731 ; Burke , 197 A.D.3d at 969, 153 N.Y.S.3d 338 ).