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People v. Gessner

Supreme Court of New York, Fourth Department

November 17, 2017

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ERIC R. GESSNER, DEFENDANT-APPELLANT.

          LINDA M. CAMPBELL, SYRACUSE, FOR DEFENDANT-APPELLANT.

          GREGORY S. OAKES, DISTRICT ATTORNEY, OSWEGO (AMY L. HALLENBECK OF COUNSEL), FOR RESPONDENT.

          PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND CURRAN, JJ.

         Appeal from a judgment of the Oswego County Court (Donald E. Todd, J.), rendered January 29, 2015. The judgment convicted defendant, upon his plea of guilty, of attempted sexual abuse in the first degree.

         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 attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65 [1]). Defendant's contention that the People acted vindictively in presenting the felony charge to the grand jury was forfeited by his plea of guilty (see People v Taylor, 65 N.Y.2d 1, 5 [1985]; People v Rodriguez, 55 N.Y.2d 776, 777 [1981]) and, in any event, is encompassed by his valid and unrestricted waiver of the right to appeal (see generally People v Parker, 151 A.D.3d 1876, 1876 [4th Dept 2017]; People v Gilliam, 96 A.D.3d 1650, 1650-1651 [4th Dept 2012], lv denied 19 N.Y.3d 1026');">19 N.Y.3d 1026 [2012]). Contrary to defendant's contention, "[t]he record establishes that County Court engage[d] [him] in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice..., and informed him that the waiver was a condition of the plea agreement" (People v Snyder, 151 A.D.3d 1939, 1939 [4th Dept 2017] [internal quotation marks omitted]). The record further establishes that the court was aware of defendant's traumatic brain injury (TBI) and took pains to ensure that the TBI did not impair defendant's ability to understand the plea or the waiver of the right to appeal. The plea colloquy establishes, moreover, that the waiver of the right to appeal was knowing, voluntary, and intelligent despite defendant's TBI (see People v Scott, 144 A.D.3d 1597, 1598 [4th Dept 2016], lv denied 28 N.Y.3d 1150');">28 N.Y.3d 1150 [2017]; People v DeFazio, 105 A.D.3d 1438, 1439 [4th Dept 2013], lv denied 21 N.Y.3d 1015');">21 N.Y.3d 1015 [2013]).

         Defendant's constitutional speedy trial claim survives both his plea of guilty and his valid waiver of the right to appeal (see People v Romeo, 47 A.D.3d 954, 957 [2d Dept 2008], affd 12 N.Y.3d 51');">12 N.Y.3d 51 [2009], cert denied 588 U.S. 817 [2009]), but the record supports the court's determination that defendant abandoned that claim by presenting no evidence and making no arguments in support of it (see People v Smith, 249 A.D.2d 426, 427 [2d Dept 1998], lv denied 92 N.Y.2d 906');">92 N.Y.2d 906 [1998]; see generally People v Paduano, 84 A.D.3d 1730, 1730-1731 [4th Dept 2011]).

         By pleading guilty, defendant forfeited his right to appellate review of his contention that the People violated the notice requirement of CPL 710.30 with respect to the victim's identification (see People v Perkins, 140 A.D.3d 1401, 1403 [3d Dept 2016], lv denied28 N.Y.3d 1126');">28 N.Y.3d 1126 [2016], reconsideration denied29 N.Y.3d 951');">29 N.Y.3d 951 [2017]; People v La Bar, 16 A.D.3d 1084, 1084 [4th Dept 2005], lv denied5 N.Y.3d 764');">5 N.Y.3d 764 [2005]). In any event, that contention is also encompassed by his valid waiver of the right to appeal (see People v Lopez, 118 A.D.3d 1190, 1191 [3d Dept 2014], lv denied24 N.Y.3d 1003');">24 N.Y.3d 1003 [2014]), as is his related contention that the court should have suppressed the victim's identification (see People v ...


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