2 No. 43
The People &c.,
Respondent,
v.
Keith Campbell, a/k/a Leroy Miller,
Appellant.
_________________________________________________________________
2002 NY Int. 44
April 30, 2002
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Lynn W.L. Fahey, for appellant.
Donna Aldea, for respondent.
_________________________________________________________________
GRAFFEO, J.:
In this appeal we consider whether a general waiver of the right to
appeal secured in conjunction with the entry of a negotiated plea of
guilty encompasses a claim of unreasonable delay in imposing sentence
under CPL 380.30(1). We hold that a claim of unreasonable delay in
sentencing does not fall within the ambit of the waiver as it
challenges the legality of the sentence.
On March 1, 1995 defendant entered a guilty plea to two counts of
attempted criminal sale of a controlled substance in the third degree.
The plea colloquy included a comprehensive exchange between the Judge
and defendant concerning the waiver of defendant's right to appeal --
which was part of the bargained- for plea agreement -- and defendant
executed written waivers. Defendant failed to appear for sentencing
the following month, but was returned to Supreme Court on bench
warrants in April 1997, after being paroled on another offense.
Defendant then moved to vacate his guilty plea and dismiss the
indictments pursuant to CPL 380.30(1), arguing that the court lost
jurisdiction to sentence him because of this two-year delay.
In denying defendant's motion on the merits, Supreme Court described
in detail defendant's conduct in the criminal justice system over the
prior seven years, including missed court appearances that led to the
issuance of numerous bench warrants, and his use of four aliases in
various arrests. The court also found that defendant used nine
different dates of birth, five inconsistent places of birth and, as a
SNIPPETS:
In this appeal we consider whether a general waiver of the right to appeal secured in
The plea colloquy included a comprehensive exchange between the Judge and defendant
Defendant failed to appear for sentencing the following month, but was returned to Supreme
Defendant then moved to vacate his guilty plea and dismiss the indictments pursuant to CPL
In denying defendant's motion on the merits, Supreme Court described in detail defendant's
The court also found that defendant used nine different dates of birth, five inconsistent
The court concluded that any delay in sentencing was not the result of judicial or
Defendant appealed and the Appellate Division held that defendant's knowing, voluntary and
This Court has held that if a long and unexplained sentencing delay is the product of
In this case, defendant argues that, notwithstanding his guilty plea and general waiver of
These include the constitutionally protected right to a speedy trial, challenges to the
Here, our recognition that a CPL 380.30claim survives a general waiver of appeal, requiring
the order of the Appellate Division should be reversed and the case remitted to the Appellate
The Appellate Division, however, did not allude to the facts, but cited People v Espinal )
I agree with my colleagues that such total foreclosure of appeals would improperly bar
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley and Rosenblatt concur, Judge
However, because the court found that defendant had been denied his right to counsel at
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