People v Diallo

People v Diallo 2011 NY Slip Op 07178 Decided on October 13, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 13, 2011
Catterson, J.P., Richter, Manzanet-Daniels, Román, JJ.
5701 3002/06

[*1]The People of the State of New York, Respondent,

v

Alpha Diallo, also known as Alpha Ismael Diallo, Defendant-Appellant.



 
Robert S. Dean, Center for Appellate Litigation, New York
(Robin Nichinsky of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (T. Charles Won of
counsel), for respondent.

Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered October 29, 2009, convicting defendant, upon his plea of guilty, of criminal possession in the fourth degree, and sentencing him to a term of 1 to 3 years, unanimously affirmed.

Defendant claims that, at the time of the plea allocution, the court was obligated to ask defendant if he understood he was giving up any psychiatric defense. Initially we note that defendant has not moved to withdraw his guilty plea. Moreover, this case does not come within the narrow exception to the preservation requirement (see People v Lopez, 71 NY2d 662 [1988]), because there was nothing in the plea allocution that cast doubt on defendant's guilt or raised any defense, psychiatric or otherwise. Accordingly, this claim is unpreserved and we decline to review it in the interest of justice.

As an alternative holding, we also reject it on the merits. The record establishes that defendant's plea was knowing, intelligent and voluntary. Defendant's mental capacity to stand trial had already been established in proceedings under CPL 730. Defendant cites to proceedings, before a different Justice, relating to a possible defense of lack of responsibility by reason of mental disease or defect (see Penal Law § 40.15). However, nothing occurred at the plea proceeding that would trigger a duty on the court to inquire about a waiver of such a defense (see e.g. People v Fiallo, 6 AD3d 176, 177 [2004], lv denied 3 NY3d 640 [2004]).

Defendant made a valid waiver of his right to appeal, in a colloquy with the court as well as in writing (see People v Ramos, 7 NY3d 737 [2006]; People v Lopez, 6 NY3d 248 [2006]). That waiver forecloses review of defendant's contention that the sentence was harsh and excessive. As an alternative holding, we perceive no basis for reducing the sentence.

Defendant's constitutional speedy trial claim survives both his guilty plea and his appeal waiver, but it is nevertheless unreviewable. Defense counsel's speedy trial motion was made entirely on statutory rather than constitutional grounds (see People v Jeffries, 62 AD3d 530 [2009], lv denied 13 NY3d 745 [2009]), and defendant abandoned his unresolved pro se motions [*2]asserting constitutional speedy trial claims (see People v Berry, 15 AD3d 233, 234 [2005], lv denied 4 NY3d 883 [2005]). In any event, we find no violation of defendant's constitutional right to a speedy trial (see People v Taranovich, 37 NY2d 442 [1975]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 13, 2011

CLERK