Opinion
109991
01-30-2020
The PEOPLE of the State of New York, Respondent, v. Efrain ACEVEDO III, Appellant.
Adam W. Toraya, Albany, for appellant. P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Adam W. Toraya, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Before: Garry, P.J., Mulvey, Aarons, Pritzker and Colangelo, JJ.
MEMORANDUM AND ORDER
Aarons, J. On June 14, 2016, June 30, 2016 and August 4, 2016, a confidential informant, working with an investigator from the United States Drug Enforcement Administration, allegedly purchased crack cocaine from defendant during controlled buys arranged by a special agent with the Drug Enforcement Administration. On April 19, 2017, defendant was charged by indictment with criminal sale of a controlled substance in the first degree and criminal sale of a controlled substance in the second degree. The charges stemmed from the controlled buys that took place on June 14, 2016 and June 30, 2016. In June 2017, defendant filed an omnibus motion seeking, among other things, to dismiss the indictment, alleging that his due process rights were violated by the delay in commencing the prosecution. Following a combined Rodriguez / Singer hearing (see People v. Rodriguez, 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268 [1992] ; People v. Singer, 44 N.Y.2d 241, 405 N.Y.S.2d 17, 376 N.E.2d 179 [1978] ), as well as the submission of a posthearing brief by defendant, County Court denied, in an October 2017 decision and order, that portion of the motion seeking dismissal of the indictment due to preindictment delay. As part of a negotiated disposition resolving the charged and uncharged offenses that resulted from the investigation, defendant pleaded guilty to criminal sale of a controlled substance in the second degree and waived his right to appeal. Consistent with the plea agreement, County Court sentenced him, as a second felony offender, to 9½ years in prison, to be followed by five years of postrelease supervision. Defendant appeals.
The alleged controlled buy that took place on August 4, 2016 was not charged.
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We affirm. Initially, we reject defendant's contention that his waiver of the right to appeal was not knowing, intelligent and voluntary. The minutes of the plea proceeding reflect that, at the outset of the plea proceeding, defendant was advised that a waiver of the right to appeal was a condition of the plea agreement, and defendant verbalized his understanding that he was required to waive his right to appeal as part of the agreement and stated that he agreed to do so (see People v. Snare, 174 A.D.3d 1222, 1222, 102 N.Y.S.3d 902 [2019], lv denied 34 N.Y.3d 984, 113 N.Y.S.3d 640, 137 N.E.3d 10 [2019] ; People v. Cherry, 166 A.D.3d 1220, 1221, 86 N.Y.S.3d 355 [2018] ; People v. Koontz, 166 A.D.3d 1215, 1216, 86 N.Y.S.3d 357 [2018], lv denied 32 N.Y.3d 1206, 99 N.Y.S.3d 192, 122 N.E.3d 1105 [2019] ). County Court then explained to defendant the nature of his appellate rights and, in doing so, advised him that his appellate rights were "[s]separate and apart and independent" from the trial-related rights that he was automatically forfeiting by pleading guilty and confirmed that defendant had discussed the waiver with his attorney and that he had no further questions regarding the waiver of appeal (see People v. Chaney, 160 A.D.3d 1281, 1282–1283, 76 N.Y.S.3d 257 [2018], lv denied 31 N.Y.3d 1146, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ; People v. Savage, 158 A.D.3d 854, 855, 70 N.Y.S.3d 602 [2018] ; People v. Empey, 144 A.D.3d 1201, 1202–1203, 41 N.Y.S.3d 164 [2016], lv denied 28 N.Y.3d 1144, 52 N.Y.S.3d 296, 74 N.E.3d 681 [2017] ). Defendant, after consulting with counsel, also signed a written waiver of appeal in open court — which stated that defendant was waiving his right to appeal in consideration of the plea agreement and any issues regarding the negotiated sentence being harsh and excessive — and County Court confirmed that defendant understood the written waiver and that he had reviewed it with his attorney (see People v. Thacker, 173 A.D.3d 1360, 1361, 102 N.Y.S.3d 764 [2019], lv denied 34 N.Y.3d 938, 109 N.Y.S.3d 730, 133 N.E.3d 434 [2019] ; People v. Greene, 171 A.D.3d 1407, 1408, 99 N.Y.S.3d 120 [2019] ; People v. Stebbins, 171 A.D.3d 1395, 1396, 98 N.Y.S.3d 670 [2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 698, 130 N.E.3d 1308 [2019] ). Accordingly, we find that defendant's combined oral and written waiver of appeal was knowing, intelligent and voluntary (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Cannelli, 173 A.D.3d 1567, 1568, 101 N.Y.S.3d 668 [2019] ; People v. Thacker, 173 A.D.3d at 1360–1361, 102 N.Y.S.3d 764 ; People v. Koontz, 166 A.D.3d at 1216, 86 N.Y.S.3d 357 ). Given defendant's valid waiver of appeal, he is foreclosed from now challenging the agreed-upon sentence as harsh and excessive (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. Thacker, 173 A.D.3d at 1361, 102 N.Y.S.3d 764 ; People v. O'Neill, 172 A.D.3d 1778, 1779, 100 N.Y.S.3d 797 [2019], lv denied 34 N.Y.3d 953, 110 N.Y.S.3d 655, 134 N.E.3d 654 [2019] ).
Defendant's claim that his guilty plea was not knowingly, voluntarily and intelligently entered survives the waiver of appeal (see People v. Mais, 168 A.D.3d 1142, 1143, 89 N.Y.S.3d 487 [2019] ), but it is unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion (see People v. Williams, 27 N.Y.3d 212, 214, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ; People v. Conceicao, 26 N.Y.3d 375, 381, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Duggins, 161 A.D.3d 1445, 1446, 77 N.Y.S.3d 765 [2018], lv denied 32 N.Y.3d 937, 84 N.Y.S.3d 863, 109 N.E.3d 1163 [2018] ). Moreover, contrary to defendant's contention, defendant's statements at sentencing — including alleged and unspecified inconsistencies and ministerial errors in discovery material and other paperwork, which he claimed were belatedly provided to him by counsel — did not negate an essential element of the crime or otherwise cast significant doubt upon his guilt so as to trigger the narrow exception to the preservation requirement (see People v. Tyrell, 22 N.Y.3d 359, 364, 981 N.Y.S.2d 336, 4 N.E.3d 346 [2013] ; People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Joubert, 155 A.D.3d 1255, 1256, 64 N.Y.S.3d 745 [2017], lv denied 30 N.Y.3d 1116, 77 N.Y.S.3d 341, 101 N.E.3d 982 [2018] ).
Defendant also challenges County Court's denial of his motion to dismiss the indictment on constitutional speedy trial grounds, a contention that survives both defendant's guilty plea and his waiver of the right to appeal (see People v. Williams, 163 A.D.3d 1283, 1285, 82 N.Y.S.3d 646 [2018], lv denied 32 N.Y.3d 1069, 89 N.Y.S.3d 124, 113 N.E.3d 958 [2018] ; People v. Gerald, 153 A.D.3d 1029, 1030, 61 N.Y.S.3d 173 [2017] ). " ‘In assessing whether a defendant's constitutional right to a speedy trial has been violated by alleged preindictment delay, courts must consider the extent of the delay, the reason for the delay, the nature of the charges against the defendant, whether there has been an extended period of pretrial incarceration and whether the defense has been impaired by reason of the delay’ " ( People v. Morris, 176 A.D.3d 1502, 1503, 111 N.Y.S.3d 469 [2019], quoting People v. Williams, 163 A.D.3d at 1285, 82 N.Y.S.3d 646 [citations omitted]; see People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975] ). Although "[a]n unreasonable and unjustified indictment delay violates a defendant's due process rights and may result in dismissal of the indictment, even when no prejudice results" ( People v. Alexander, 127 A.D.3d 1429, 1430, 8 N.Y.S.3d 674 [2015], lv denied 25 N.Y.3d 1197, 16 N.Y.S.3d 520, 37 N.E.3d 1163 [2015] ; accord People v. Morris, 176 A.D.3d at 1503, 111 N.Y.S.3d 469 ; People v. Gerald, 153 A.D.3d at 1030, 61 N.Y.S.3d 173 ), "no one factor or combination of the factors ... is necessarily decisive or determinative of the speedy trial claim, but rather the particular case must be considered in light of all the factors as they apply to it" ( People v. Taranovich, 37 N.Y.2d at 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 ; accord People v. Williams, 163 A.D.3d at 1285, 82 N.Y.S.3d 646 ). Upon consideration of the factors and the record before us, we find that defendant's due process rights were not violated by the preindictment delay.
Turning first to the extent of the delay between the time of defendant's last alleged criminal activity in August 2016 and his indictment in April 2017, we note that an eight-month delay has been deemed to be "comparatively brief for speedy trial considerations" ( People v. Allende, 206 A.D.2d 640, 642, 614 N.Y.S.2d 612 [1994], appeal dismissed 84 N.Y.2d 921, 621 N.Y.S.2d 510, 645 N.E.2d 1209 [1994] ), and comparable or longer delays have been found not to violate due process (see People v. Morris, 176 A.D.3d at 1504, 111 N.Y.S.3d 469 [11 months]; People v. Williams, 163 A.D.3d at 1285, 82 N.Y.S.3d 646 [nine months]; People v. Ruise, 86 A.D.3d 722, 723, 926 N.Y.S.2d 754 [2011], lv denied 17 N.Y.3d 861, 932 N.Y.S.2d 27, 956 N.E.2d 808 [2011] [13 months and 23 days]; People v. Flagg, 30 A.D.3d 889, 891–892, 819 N.Y.S.2d 577 [2006], lv denied 7 N.Y.3d 848, 823 N.Y.S.2d 777, 857 N.E.2d 72 [2006] [seven months]; People v. Irvis, 301 A.D.2d 782, 783, 754 N.Y.S.2d 693 [2003], lv denied 99 N.Y.2d 655, 760 N.Y.S.2d 119, 790 N.E.2d 293 [2003] [10 months] ). Regarding the reason for the delay, defendant contends, among other things, that his prosecution should have commenced shortly after August 2016 when the investigation of his criminal activity concluded following the final controlled transaction and when he surrendered himself to the custody of the Department of Corrections and Community Supervision to begin serving a prison term for an unrelated drug conviction. The People, however, advance multiple reasons justifying the delay. The record reflects that the special agent continued to investigate a potential coconspirator of defendant for at least two more months after defendant's incarceration with the intent of pursuing a conspiracy prosecution and discerning the supplier of the drugs (see People v. Morris, 176 A.D.3d at 1503, 111 N.Y.S.3d 469 ; People v. Mitchell, 192 A.D.2d 494, 495, 597 N.Y.S.2d 297 [1993], lv denied 82 N.Y.2d 723, 602 N.Y.S.2d 820, 622 N.E.2d 321 [1993] ). The special agent also had originally intended to pursue federal drug trafficking charges in lieu of bringing the charges in state court (cf. People v. Morris, 25 A.D.3d 915, 917, 807 N.Y.S.2d 228 [2006], lvs denied 6 N.Y.3d 851, 853, 816 N.Y.S.2d 757, 759, 849 N.E.2d 980, 982 [2006]; People v. Chilli, 227 A.D.2d 103, 641 N.Y.S.2d 310 [1996] ). The special agent's testimony further justified the delay by the need to protect the anonymity of the confidential informant from defendant and any of his associates (see People v. Ruise, 86 A.D.3d at 723, 926 N.Y.S.2d 754 ).
As to the nature of the charges, the charges against defendant were serious, as they included a class A–I felony and a class A–II felony, and we decline defendant's invitation to characterize the class A–II felony that he was convicted of as a "simplistic" crime (see People v. Morris, 176 A.D.3d at 1504, 111 N.Y.S.3d 469 ; People v. Williams, 163 A.D.3d at 1286, 82 N.Y.S.3d 646 ; People v. Ruise, 86 A.D.3d at 723, 926 N.Y.S.2d 754 ). In addition, defendant's August 2016 incarceration, which occurred prior to the filing of the indictment and continued during the underlying proceedings, "was not due to the present offense but because he was already serving time on another crime" ( People v. Allende, 206 A.D.2d at 642, 614 N.Y.S.2d 612 ; see People v. Williams, 163 A.D.3d at 1286, 82 N.Y.S.3d 646 ; People v. Gerald, 153 A.D.3d at 1030, 61 N.Y.S.3d 173 ; People v. Morris, 25 A.D.3d at 917, 807 N.Y.S.2d 228 ). Finally, contrary to his contention, defendant has failed to demonstrate actual prejudice or to make a persuasive showing that his defense in this matter was impaired by the delay (see People v. Williams, 163 A.D.3d at 1283, 82 N.Y.S.3d 646 ; People v. Gerald, 153 A.D.3d at 1030–1031, 61 N.Y.S.3d 173 ; People v. Mitchell, 192 A.D.2d at 495, 597 N.Y.S.2d 297 ). Under the circumstances presented here and upon weighing all of the requisite factors, we find that defendant was not denied due process by the alleged preindictment delay in this case. Accordingly, County Court properly denied defendant's motion to dismiss the indictment on this basis (see People v. Morris, 176 A.D.3d at 1504, 111 N.Y.S.3d 469 ; People v. Ruise, 86 A.D.3d at 723, 926 N.Y.S.2d 754 ; People v. Brown, 262 A.D.2d 419, 420, 691 N.Y.S.2d 178 [1999] ).
Garry, P.J., Mulvey, Pritzker and Colangelo, JJ., concur.
ORDERED that the judgment is affirmed.