People v. Palmer

207 A.D.3d 802

170 N.Y.S.3d 739

The PEOPLE of the State of New York, Respondent,

v.Thomas PALMER, Appellant.

110931

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

Calendar Date: May 23, 2022

Decided and Entered: July 7, 2022

Craig Meyerson, Peru, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Pritzker, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

Appeal from a judgment of the County Court of Schenectady County (Sypniewski, J.), rendered April 13, 2018, convicting defendant upon his plea of guilty of the crime of sexual abuse in the first degree.

Defendant was charged in two indictments, handed up in April 2017 and June 2017, with offenses relating to his sexual contact with the underage victim in 2016. The People declared readiness for trial when defendant was arraigned on each indictment, after which the People successfully moved to consolidate the indictments for trial.

As the trial was set to begin on January 2, 2018, the People reported that they had received a December 26, 2017 forensic report indicating that semen had been found on the victim's bedsheet. They therefore sought and obtained, over defendant's objection, an adjournment to await the results of DNA testing. At an appearance on January 26, 2018, the People advised County Court that the test results matched defendant's DNA to the genetic material on the bedsheet. Defendant thereafter moved to dismiss the indictment on constitutional and statutory speedy trial grounds. After that motion was denied, defendant pleaded guilty to sexual abuse in the first degree in satisfaction of the pending charges and purportedly waived his right to appeal in return for a recommended sentence of five years in prison and between 5 and 15 years of postrelease supervision. County Court proceeded to sentence defendant, as a second violent felony offender, to the agreed-upon prison term of five years and 15 years of postrelease supervision. Defendant appeals, and we affirm.

Initially, we agree with defendant that his waiver of the right to appeal is invalid. The written appeal waiver is overbroad in that it erroneously claims to be a complete bar to a direct appeal as well as collateral proceedings, and County Court did not overcome that defect "by ensuring that defendant understood that some appellate and collateral relief survives an appeal waiver" ( People v. Lunan, 196 A.D.3d 969, 970, 148 N.Y.S.3d 408 [2021] ; accord People v. Williams, 203 A.D.3d 1398, 1398–1399, 164 N.Y.S.3d 342 [2022], lv denied 38 N.Y.3d 1036, 169 N.Y.S.3d 230, 189 N.E.3d 337 [2022] ; see People v. Blair, 205 A.D.3d 1227, 1228, 166 N.Y.S.3d 617 [2022] ).

Although the appeal waiver does not bar defendant's remaining contentions as a result, two of those contentions are nevertheless forfeited by his guilty plea. In particular, by pleading guilty, defendant forfeited his contention that County Court abused its discretion in granting the People's request for an adjournment to obtain what he views as untimely DNA testing of the material recovered from the victim's bedsheet (see People v. Hansen, 95 N.Y.2d 227, 230–233, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. Miller, 162 A.D.3d 1231, 1234, 79 N.Y.S.3d 348 [2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 866, 109 N.E.3d 1166 [2018] ; People v. Crisler, 81 A.D.3d 1308, 1309, 916 N.Y.S.2d 387 [2011], lv denied 17 N.Y.3d 793, 929 N.Y.S.2d 101, 952 N.E.2d 1096 [2011] ). Further, as defendant was sentenced prior to the January 1, 2020 effective date of CPL 30.30(6), his guilty plea also resulted in the forfeiture of his statutory speedy trial argument (see People v. Avera, 192 A.D.3d 1382, 1383, 145 N.Y.S.3d 199 [2021], lv denied 37 N.Y.3d 953, 147 N.Y.S.3d 501, 170 N.E.3d 375 [2021] ; People v. Duggins, 192 A.D.3d 191, 195, 140 N.Y.S.3d 317 [2021], lv denied 36 N.Y.3d 1096, 144 N.Y.S.3d 152, 167 N.E.3d 1287 [2021] ).

Defendant's remaining argument, that he was denied his constitutional right to a speedy trial, survives his guilty plea and was preserved by his motion to dismiss (see People v. Chaney, 197 A.D.3d 1359, 1360, 153 N.Y.S.3d 662 [2021], lvs denied 37 N.Y.3d 1059, 1060, 154 N.Y.S.3d 629, 630, 176 N.E.3d 665, 666 [2021]). After applying and balancing the factors set forth in ( People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975] ), however, we are satisfied that the argument lacks merit. Those factors "are: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of defendant's defense" ( People v. Romeo, 12 N.Y.3d 51, 55, 876 N.Y.S.2d 666, 904 N.E.2d 802 [2009], cert denied 558 U.S. 817, 130 S.Ct. 63, 175 L.Ed.2d 24 [2009] ; see People v. Taranovich, 37 N.Y.2d at 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 ). With regard to the first and second factors, approximately nine months elapsed between the April 2017 indictment against defendant and his January 2018 motion to dismiss the indictment on speedy trial grounds. The delay was largely attributable to regular pretrial...