People v Kelly, 2024 NY Slip Op 04881 [231 AD3d 1515]
October 4, 2024
Appellate Division, Fourth Department
[*1]
The People of the State of New York, Respondent,
v
Detroit Kelly, Appellant.
Julie Cianca, Public Defender, Rochester (Jane I. Yoon of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Ryan P. Ashe of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.), rendered November 22, 2021. The judgment convicted defendant upon his plea of guilty of attempted criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]). We affirm.
Contrary to defendant’s contention, we conclude that the plea colloquy establishes that he knowingly, voluntarily, and intelligently waived the right to appeal ( see People v Cunningham , 213 AD3d 1270 , 1270 [4th Dept 2023], lv denied 39 NY3d 1110 [2023]; People v Witherow , 203 AD3d 1595 , 1595 [4th Dept 2022]; see generally People v Thomas , 34 NY3d 545 , 559-564 [2019], cert denied 589 US —, 140 S Ct 2634 [2020]). Supreme Court’s misstatement at sentencing that defendant could still appeal the denial of his statutory speedy trial motion does not vitiate his otherwise valid waiver of the right to appeal ( see People v Snyder , 153 AD3d 1662 , 1663 [4th Dept 2017]; People v West , 239 AD2d 921, 921 [4th Dept 1997], lv denied 90 NY2d 944 [1997]; see generally People v Moissett , 76 NY2d 909, 910, 912 [1990]). Consequently, defendant’s valid waiver of the right to appeal precludes our review of his contention that he was denied his statutory right to a speedy trial ( see People v Wint , 222 AD3d 1050 , 1051 [3d Dept 2023], lv denied 41 NY3d 945 [2024]; People v Person , 184 AD3d 447 , 447 [1st Dept 2020], lv denied 35 NY3d 1069 [2020]; People v Paduano , 84 AD3d 1730 , 1730 [4th Dept 2011]).
Although it survives his valid waiver of the right to appeal ( see People v Gessner , 155 AD3d 1668 , 1669 [4th Dept 2017]; see generally People v Lopez , 6 NY3d 248 , 255 [2006]; People v Seaberg , 74 NY2d 1, 9 [1989]), we conclude that defendant’s contention that his constitutional right to a speedy trial was violated is unpreserved for our review because defendant failed to move to dismiss the accusatory instrument on that ground ( see People v Works , 211 AD3d 1574 , 1575 [4th Dept 2022], lv denied 39 NY3d 1114 [2023]; People v Williams , 120 AD3d 1526 , 1526-1527 [4th Dept 2014], lv denied 24 NY3d 1090 [2014]; People v Chinn , 104 AD3d 1167 , 1169 [4th Dept 2013], lv denied 21 NY3d 1014 [2013]). We decline to exercise our power to review defendant’s contention as a matter of discretion in the interest of justice ( see CPL 470.15 [3] [c]). Present—Lindley, J.P., Curran, Ogden, Nowak and Keane, JJ..