People v. Votaw

• Decision Date: 21 January 2021
• Docket Number: 112357
• Citation: 190 A.D.3d 1162,139 N.Y.S.3d 455
• Parties: The PEOPLE of the State of New York, Respondent, v. Jonathan VOTAW, Appellant.
• Court: New York Supreme Court — Appellate Division

190 A.D.3d 1162

139 N.Y.S.3d 455

The PEOPLE of the State of New York, Respondent,

v.Jonathan VOTAW, Appellant.

112357

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

Calendar Date: January 6, 2021

Decided and Entered: January 21, 2021

Steven M. Sharp, Albany, for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: Egan Jr., J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Aarons, J.

Appeal from a judgment of the Supreme Court (McDonough, J.), rendered May 17, 2019 in Albany County, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

In 2018, a state trooper made a traffic stop of a vehicle driven by defendant, the sole occupant, who was operating the vehicle without a license. A subsequent K–9 search of the vehicle resulted in several alerts for narcotics. Among other things, a cell phone on the vehicle dashboard was found with a quantity of heroin secreted in the battery compartment. Hidden behind the center console, troopers also found a plastic bag containing waxed baggies of heroin and a plastic bag containing a substance that field-tested positive for cocaine. Defendant was arrested and charged by indictment with two counts of criminal possession of a controlled substance in the third degree based upon his possession of cocaine, and criminal possession of a controlled substance in the third and seventh degrees based upon his possession of heroin.

Defendant moved to dismiss the indictment on statutory speedy trial grounds (see CPL 30.30 ). The People opposed the motion, indicating that a superseding indictment was expected shortly based upon forensic laboratory results establishing that the substance that had field-tested positive for cocaine was heroin. The People thereafter obtained a six-count superseding indictment on February 1, 2019, charging defendant with four counts of criminal possession of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the seventh degree – all of which were based upon his possession of heroin in the vehicle. Supreme Court then denied defendant's motion to dismiss the original indictment, finding that the People's April 12, 2018 declaration of readiness for trial at the arraignment on that indictment had not been illusory.¹

Pursuant to a negotiated agreement, defendant, in 2019, pleaded guilty to criminal possession of a controlled substance in the third degree under count 3 of the superseding indictment, admitting that he had knowingly possessed the heroin found in the cell phone battery compartment with the intent to sell it. Under the terms of the plea agreement, defendant withdrew all motions, waived further hearings on his pending motions and was required to waive his right to appeal. In exchange, Supreme Court imposed the agreed-upon six-year prison sentence to be followed by three years of postrelease supervision, as an acknowledged second felony offender. Defendant appeals.

We affirm. Contrary to defendant's arguments, his combined oral and written waiver of appeal was knowing, voluntary and intelligent (see People v. Thomas, 34 N.Y.3d 545, 559–561, 564, 122 N.Y.S.3d 226, 144 N.E.3d 970 [2019] ; People v. Sanders, 25 N.Y.3d 337, 340–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ). To that end, an appeal waiver was recited as a condition of the plea agreement. Supreme Court made clear its separate and distinct nature and answered defendant's questions. Defendant, assisted by counsel, also signed a written waiver. As such, defendant's appeal waiver was valid (see People v. Burnett, 186 A.D.3d 1837, 1837–1838, 129 N.Y.S.3d 344 [2020] ). "[G]enerally, an appeal waiver will encompass any issue that does not involve a right of constitutional dimension going to the very heart of the process" ( People v. Lopez, 6 N.Y.3d at 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [internal quotation marks and citation omitted] ) and, consequently, we have held that a statutory speedy trial claim is precluded by a valid appeal waiver (see People v. Harrison, 176 A.D.3d 1262, 1264, 109 N.Y.S.3d 770 [2019], lv denied 34 N.Y.3d 1016, 114 N.Y.S.3d 760, 138 N.E.3d 489 [2019] ; People v. Gardiner, 159 A.D.3d 1233, 1234, 73 N.Y.S.3d 643 [2018], lv denied 31 N.Y.3d 1082, 79 N.Y.S.3d 103, 103 N.E.3d 1250 [2018] ; People v. Devino, 110 A.D.3d 1146, 1147, 973 N.Y.S.2d 372 [2013] ). We agree with the First Department that the enactment of CPL 30.30(6) does not alter that analysis (see People v. Person, 184 A.D.3d 447, 447, 126 N.Y.S.3d 14 [2020], lv denied 35 N.Y.3d 1069, 129 N.Y.S.3d 387, 152 N.E.3d 1189 [2020] ; see also People v. Acosta, 189 A.D.3d 508, 133 N.Y.S.3d 807, 2020 N.Y. Slip Op. 07466, *1 [2020] ). Accordingly, we find that, prospectively – for judgments rendered after January 1, 2020 – "the phrase ‘shall be reviewable’ in CPL 30.30(6) unequivocally directs that appellate review of a CPL 30.30 claim shall no longer be forfeited by a guilty plea," but that "neither that phrase, nor any other language in the statute, precludes a voluntary waiver" ( People v. Person, 184 A.D.3d at 448, 126 N.Y.S.3d 14, quoting CPL 30.30[6] ). As a consequence, we hold that defendant's statutory speedy trial claim is precluded by his valid appeal waiver.

Defendant appears to further argue that his...