People v. Gessner

• Citation: 155 A.D.3d 1668,64 N.Y.S.3d 822
• Parties: The PEOPLE of the State of New York, Respondent, v. Eric R. GESSNER, Defendant–Appellant.
• Decision Date: 17 November 2017
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1668
64 N.Y.S.3d 822

The PEOPLE of the State of New York, Respondent,
v.
Eric R. GESSNER, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 17, 2017.

64 N.Y.S.3d 823

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.

MEMORANDUM:

155 A.D.3d 1668

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

64 N.Y.S.3d 824

charge to the grand jury was forfeited by his plea of guilty (see People v. Taylor, 65 N.Y.2d 1, 5, 489 N.Y.S.2d 152, 478 N.E.2d 755 [1985] ; People v. Rodriguez, 55 N.Y.2d 776, 777, 447 N.Y.S.2d 246, 431 N.E.2d 972 [1981] ) and, in any event, is encompassed by his valid and unrestricted waiver of the right to appeal (see generally

155 A.D.3d 1669

People v. Parker, 151 A.D.3d 1876, 1876, 54 N.Y.S.3d 355 [4th Dept. 2017] ; People v. Gilliam, 96 A.D.3d 1650, 1650–1651, 946 N.Y.S.2d 811 [4th Dept.2012], lv. denied 19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111 [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, 54 N.Y.S.3d 899 [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, 40 N.Y.S.3d 689 [4th Dept.2016], lv. denied 28 N.Y.3d 1150, 52 N.Y.S.3d 302, 74 N.E.3d 687 [2017] ; People v. DeFazio, 105 A.D.3d 1438, 1439, 963 N.Y.S.2d 497 [4th Dept.2013], lv. denied 21 N.Y.3d 1015, 971 N.Y.S.2d 497, 994 N.E.2d 393 [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, 849 N.Y.S.2d 666 [2d Dept.2008], affd. 12 N.Y.3d 51, 876 N.Y.S.2d 666, 904 N.E.2d 802 [2009], cert. denied 588 U.S. 817, 130 S.Ct. 63, 175 L.Ed.2d 24 [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, 673 N.Y.S.2d 146 [2d Dept.1998], lv. denied 92 N.Y.2d 906, 680 N.Y.S.2d 70, 702 N.E.2d 855 [1998] ; see generally People v. Paduano, 84 A.D.3d 1730, 1730–1731, 922 N.Y.S.2d 726 [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, 33 N.Y.S.3d 584 [3d Dept.2016], lv. denied 28 N.Y.3d 1126, 51 N.Y.S.3d 22, 73 N.E.3d 362 [2016], reconsideration denied 29 N.Y.3d 951, 54 N.Y.S.3d 382, 76 N.E.3d 1085 [2017] ; People v. La Bar, 16 A.D.3d 1084, 1084, 791 N.Y.S.2d 233 [4th Dept.2005], lv. denied 5 N.Y.3d 764, 801 N.Y.S.2d 259, 834 N.E.2d 1269 [2005] ). In any event, that...