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,
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.
hereby ORDERED that the judgment so appealed from is
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 ). 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
; People v Rodriguez, 55 N.Y.2d 776, 777
) 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 ).
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
; People v DeFazio, 105 A.D.3d 1438, 1439 [4th
Dept 2013], lv denied 21 N.Y.3d 1015');">21 N.Y.3d 1015 ).
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 , cert denied 588
U.S. 817 ), 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 ; see
generally People v Paduano, 84 A.D.3d 1730, 1730-1731
[4th Dept 2011]).
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
, reconsideration denied29 N.Y.3d 951');">29 N.Y.3d 951 ;
People v La Bar, 16 A.D.3d 1084, 1084 [4th Dept
2005], lv denied5 N.Y.3d 764');">5 N.Y.3d 764 ). 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
), as is his related contention that the court should
have suppressed the victim's identification (see
People v ...