People v. Irvis

• Decision Date: 22 December 2011
• Citation: 2011 N.Y. Slip Op. 09209,935 N.Y.S.2d 371,90 A.D.3d 1302
• Parties: The PEOPLE of the State of New York, Respondent, v. Barry IRVIS, Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09209
90 A.D.3d 1302
935 N.Y.S.2d 371

The PEOPLE of the State of New York, Respondent,
v.
Barry IRVIS, Appellant.

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

Dec. 22, 2011.

[935 N.Y.S.2d 372]

Stephen G. Court, Saratoga Springs, for appellant, and appellant pro se.

Terry J. Wilhelm, District Attorney, Catskill (Lauren D. Konsul, New York Prosecutors Training Institute, Inc., Albany, of counsel), for respondent.

Before: MERCURE, Acting P.J., PETERS, MALONE JR., KAVANAGH and STEIN, JJ.

KAVANAGH, J.

[90 A.D.3d 1303] Appeal from a judgment of the County Court of Greene County (Lalor, J.), rendered August 12, 2008, convicting defendant upon his plea of guilty of the crimes of rape in the second degree and attempted rape in the second degree.

Defendant pleaded guilty to rape in the second degree and attempted rape in the second degree in satisfaction of a five-count indictment charging him with having engaged in sexual acts with an underage victim. In accordance with the plea agreement, defendant waived his right to appeal and was sentenced to consecutive prison

[935 N.Y.S.2d 373]

sentences of 3 1/2 to 7 years and 1 1/2 to 3 years, respectively. Defendant now appeals.

By pleading guilty, defendant is precluded from raising his claims that he was denied his CPL 30.30 statutory right to a speedy trial ( see People v. Dalton, 69 A.D.3d 1235, 1235, 893 N.Y.S.2d 692 [2010]; People v. Zakrzewski, 69 A.D.3d 1055, 1055, 891 N.Y.S.2d 670 [2010], lv. denied 15 N.Y.3d 758, 906 N.Y.S.2d 831, 933 N.E.2d 230 [2010] ) and that County Court committed reversible error by ruling that evidence that the victim misrepresented her age to him at the time of their encounter was irrelevant and would not be admitted at trial ( see People v. Campbell, 73 N.Y.2d 481, 485, 541 N.Y.S.2d 756, 539 N.E.2d 584 [1989]; People v. Mercer, 81 A.D.3d 1159, 1160, 917 N.Y.S.2d 397 [2011]; People v. Mead, 198 A.D.2d 612, 613, 603 N.Y.S.2d 925 [1993], lv. denied 82 N.Y.2d 899, 610 N.Y.S.2d 166, 632 N.E.2d 476 [1993] ). Further, by waiving his right to appeal, defendant is also precluded from challenging his sentence as being harsh and excessive ( see People v. Jones, 88 A.D.3d 1029, 930 N.Y.S.2d 496 [2011]; People v. Benson, 87 A.D.3d 1228, 1229, 929 N.Y.S.2d 885 [2011] ). His claim that County Court was biased is both foreclosed by his appeal waiver and unpreserved ( see People v. White, 81 A.D.3d 1039, 1039, 916 N.Y.S.2d 652 [2011] ).

However, his contention...