SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
844
KA 08-02384
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
SHERRELL WILLIAMS, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF
COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered September 15, 2008. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of forgery
devices.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon his plea of guilty of criminal possession of
forgery devices (Penal Law § 170.40 [2]) and, in appeal No. 2, he
appeals from a judgment convicting him upon his plea of guilty of
identity theft in the first degree (§ 190.80 [1]). Both pleas were
entered during one plea proceeding, during which defendant waived his
right to appeal. We reject defendant’s challenge in both appeals to
the validity of the waiver of the right to appeal (see People v Lopez,
6 NY3d 248, 256; People v Callahan, 80 NY2d 273, 283). “The written
waiver of the right to appeal, together with defendant’s responses
during the plea proceeding, establish that the waiver was voluntarily,
knowingly, and intelligently entered” (People v Griner, 50 AD3d 1557,
1558, lv denied 11 NY3d 737; see People v Ramos, 7 NY3d 737, 738).
The valid waiver of the right to appeal encompasses defendant’s
contention in appeal No. 1 with respect to County Court’s suppression
ruling (see People v Kemp, 94 NY2d 831, 833).
Defendant’s constitutional speedy trial claim raised with respect
to both appeals survives the plea and the valid waiver of the right to
appeal (see People v Chinn, 104 AD3d 1167, 1169, lv denied 21 NY3d
1014; see also Lopez, 6 NY3d at 255), but it is unpreserved for our
review with respect to appeal No. 2 because defendant never moved to
dismiss the superior court information (see Chinn, 104 AD3d at 1169;
-2- 844
KA 08-02384
People v Kwiatkowski, 263 AD2d 552, 552, lv denied 93 NY2d 1021). We
decline to exercise our power to review the contention with respect to
appeal No. 2 as a matter of discretion in the interest of justice (see
CPL 470.15 [3] [c]). With respect to appeal No. 1, defendant contends
that the 14-month delay from the time the search warrant was executed
until he was indicted deprived him of his right to due process. In
determining whether there has been an unconstitutional delay in
commencing a prosecution, we must examine “(1) the extent of the
delay; (2) the reason for the delay; (3) the nature of the underlying
charge; (4) whether or not there has been an extended period of
pretrial incarceration; and (5) whether or not there is any indication
that the defense has been impaired by reason of the delay” (People v
Taranovich, 37 NY2d 442, 445; see People v Pulvino, 115 AD3d 1220,
1222, lv denied ___ NY3d ___ [June 10, 2014]). Upon considering the
Taranovich factors, we conclude that the delay did not deprive
defendant of his right to due process (see People v White, 108 AD3d
1236, 1237, lv denied 22 NY3d 1044). We note in particular that the
indictment encompassed charges that occurred several months after the
warrant was executed. In addition, the People established that the
investigation was ongoing during the relevant time period, and it
included attempting to locate a primary witness who disappeared after
being arrested and released on an appearance ticket, and conducting
photo array identification procedures and forensic analysis of the
seized computer.
Entered: September 26, 2014 Frances E. Cafarell
Clerk of the Court