        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

127
KA 98-05247
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SAM CHINN, III, DEFENDANT-APPELLANT.


SAM CHINN, III, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (J. Kevin
Mulroy, J.), rendered July 23, 1997. The judgment convicted
defendant, upon his plea of guilty, of murder in the first degree and
murder in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals pro se from a judgment convicting
him upon his plea of guilty of murder in the first degree (Penal Law §
125.27 [1] [a] [viii]; [b]) and murder in the second degree (§ 125.25
[1]). We reject defendant’s contention that his waiver of the right
to appeal was invalid. “[T]he record establishes that he knowingly,
intelligently and voluntarily waived his right to appeal as a
condition of the plea bargain” (People v Hicks, 89 AD3d 1480, 1480, lv
denied 18 NY3d 924), and County Court “ ‘engage[d] the defendant in an
adequate colloquy to ensure that the waiver of the right to appeal was
a knowing and voluntary choice’ ” (id.). The record also establishes
that defendant “understood that the right to appeal is separate and
distinct from those rights automatically forfeited upon a plea of
guilty” (id. at 1481 [internal quotation marks omitted]).

     Defendant further contends that his plea was involuntarily
entered due to coercive statements made to him by the court. Although
that contention survives the valid waiver of the right to appeal and
is preserved for our review (cf. People v Williams, 91 AD3d 1299,
1299; People v Moore, 59 AD3d 983, 984, lv denied 12 NY3d 857), we
conclude that defendant’s “plea was knowingly, voluntarily, and
intelligently entered” (People v Knoxsah, 94 AD3d 1505, 1505-1506; see
generally People v Shubert, 83 AD3d 1577, 1578). Defendant’s
“responses to County Court’s inquiries were sufficient to establish
both his guilt and that the plea as a whole was knowing, intelligent
and voluntary” (People v Davis, 84 AD3d 1645, 1646, lv denied 17 NY3d
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                                                        KA 98-05247

815). Although defendant may have decided to plead guilty and be
sentenced to life without parole out of fear that he would be
sentenced to death if convicted after trial, that decision was a
consequence of his own actions, having killed two people and
confessing those crimes to the police in writing and on videotape. It
cannot be said that the court, by advising defendant of the maximum
punishment for capital murder, thereby coerced him into pleading
guilty.

     Defendant’s contention “that exculpatory evidence was improperly
withheld from him” and thus that there was a Brady violation is raised
for the first time on appeal and therefore is unpreserved for our
review (People v Hayes, 71 AD3d 1187, 1189, lv denied 15 NY3d 852,
reconsideration denied 15 NY3d 921; see People v Johnson, 60 AD3d
1496, 1497, lv denied 12 NY3d 926). Moreover, defendant forfeited any
such contention by pleading guilty (see People v Kidd, 100 AD3d 779,
779; People v Philips, 30 AD3d 621, 621, lv denied 8 NY3d 949,
reconsideration denied 8 NY3d 989; People v Knickerbocker, 230 AD2d
753, 753-754, lv denied 89 NY2d 943). In any event, defendant’s
contention lacks merit, inasmuch as the record establishes that no
arguably exculpatory evidence was withheld from defendant prior to the
entry of his plea of guilty.

     Defendant further contends that this Court’s rules imposing the
burden of preparing the appellate record on defendants-appellants are
unconstitutional and that, as a result, he has been denied a fair
opportunity for appellate review. That contention is encompassed by
defendant’s waiver of the right to appeal (see generally People v
Muniz, 91 NY2d 570, 574) and, in any event, lacks merit. Similarly,
defendant’s waiver of the right to appeal “encompasses his challenges
to the court’s suppression rulings” (People v Mitchell, 93 AD3d 1173,
1174, lv denied 19 NY3d 999; see People v Kemp, 94 NY2d 831, 833). We
note in any event that, “[r]egardless of whether defendant made a
valid waiver of his right to appeal, . . . [his] argument[s]
concerning the suppression hearing [are] unavailing” (People v
Caviness, 95 AD3d 622, 622, lv denied 19 NY3d 995).

     Defendant failed to preserve for our review his contention that
the integrity of the suppression hearing was compromised because the
prosecutor improperly coached one of his suppression hearing witnesses
and the suppression court failed to maintain impartiality (see
generally People v Martin, 96 AD3d 1637, 1638, lv denied 19 NY3d 998).
In any event, there is no indication in the record that any
suppression witness was improperly prepared to testify or that the
court was biased. Further, defendant’s contention that the indictment
was defective because the People improperly re-presented the case to
the grand jury to obtain first degree murder charges was forfeited by
his guilty plea (see People v Batista, 299 AD2d 270, 270, lv denied 99
NY2d 626; see also People v Mercer, 81 AD3d 1159, 1160, lv denied 19
NY3d 999), and is also precluded by his waiver of the right to appeal
(see Mercer, 81 AD3d at 1160; People v Buckler, 80 AD3d 889, 890, lv
denied 17 NY3d 804).
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                                                        KA 98-05247

     Finally, defendant’s contentions that he was denied his
constitutional right to a speedy trial and his due process right to
prompt prosecution survive the plea and waiver of the right to appeal
(see People v Cain, 55 AD3d 1271, lv denied 11 NY3d 896), but they are
unpreserved for our review because defendant “failed to move to
dismiss the indictment on those grounds” (People v Smith, 48 AD3d
1095, 1096, lv denied 10 NY3d 870; see People v Kemp, 270 AD2d 927,
927, lv denied 95 NY2d 836). In any event, defendant’s contentions
lack merit. Defendant was indicted less than three months after the
murders, and any delay after indictment was largely due to voluminous
pretrial motions filed by the defense. In fact, defendant moved pro
se to extend the time to file motions. A suppression hearing was
expeditiously conducted, and further defense motions were made and
decided. Although defendant was incarcerated between the time of his
arrest on November 16, 1995 and his plea on July 2, 1997, that delay
was not inordinate given that this was a capital case, and there is no
evidence that the defense was impaired by reason of any delay (see
generally People v Decker, 13 NY3d 12, 14-16; People v Taranovich, 37
NY2d 442, 445).




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
