Opinion
110967
01-14-2021
The PEOPLE of the State of New York, Respondent, v. Lynda LENDE, Appellant.
Veronica Reed, Schenectady, for appellant. Susan J. Mallery, District Attorney, Howes Cave (Kevin P. Mallery of counsel), for respondent.
Veronica Reed, Schenectady, for appellant.
Susan J. Mallery, District Attorney, Howes Cave (Kevin P. Mallery of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Mulvey, Aarons and Reynolds Fitzgerald, JJ.
MEMORANDUM AND ORDER
Aarons, J.
Appeal from a judgment of the County Court of Schoharie County (Bartlett III, J.), rendered September 12, 2018, convicting defendant upon her plea of guilty of the crime of criminal possession of marihuana in the fourth degree.
Defendant was charged with criminal possession of marihuana in the first degree and unlawful growing of cannabis after law enforcement discovered marihuana plants growing in her residence. Following the denial of defendant's pretrial motions, defendant entered an Alford plea to the reduced charge of criminal possession of marihuana in the fourth degree and was required, as part of the plea agreement, to execute a waiver of appeal. On the same day that she pleaded guilty, defendant was sentenced to a one-year conditional charge and a monetary fine. Defendant appeals. We affirm.
Defendant contends that her motion to dismiss the indictment should have been granted because she was denied her constitutional right to a speedy trial. As an initial matter, we note that this contention survives defendant's appeal waiver and guilty plea regardless of their validity (see People v. Acevedo, 179 A.D.3d 1397, 1399, 117 N.Y.S.3d 767 [2020] ; People v. Irvis, 90 A.D.3d 1302, 1303, 935 N.Y.S.2d 371 [2011], lv denied 19 N.Y.3d 962, 950 N.Y.S.2d 114, 973 N.E.2d 212 [2012] ). That said, whether defendant was denied her constitutional right to a speedy trial due to preindictment delay requires the consideration of five factors: "(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. Lanfranco, 124 A.D.3d 1144, 1145, 1 N.Y.S.3d 576 [2015] [internal quotation marks and citations omitted], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ; see People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975] ; People v. Acevedo, 179 A.D.3d at 1399, 117 N.Y.S.3d 767 ). Even accepting defendant's premise that the preindictment delay was 15 months, such fact by itself is not dispositive given that longer periods of delay have not been found to be constitutionally infirm (see e.g. People v. Pitt, 43 A.D.3d 1248, 1249, 843 N.Y.S.2d 192 [2007], lv denied 9 N.Y.3d 1008, 850 N.Y.S.2d 396, 880 N.E.2d 882 [2007] [almost 18–month delay]; People v. Arrington, 31 A.D.3d 801, 802, 817 N.Y.S.2d 755 [2006], lvs denied 7 N.Y.3d 865, 868, 824 N.Y.S.2d 610, 612, 857 N.E.2d 1141, 1143 [2006] [almost 16–month delay]). Taking into account that defendant was charged with, among other things, criminal possession of marihuana in the first degree, a class C felony, the fact that defendant was not incarcerated prior to being indicted and the lack of prejudice to defendant, defendant's constitutional right to a speedy trial was not violated (see People v. Tuper, 118 A.D.3d 1144, 1146, 987 N.Y.S.2d 505 [2014], lv denied 25 N.Y.3d 954, 7 N.Y.S.3d 283, 30 N.E.3d 174 [2015] ; People v. McCorkle, 67 A.D.3d 1249, 1250–1251, 890 N.Y.S.2d 665 [2009] ).
Defendant also asserts that, as a consequence of her counsel rendering ineffective assistance, she felt rushed into pleading guilty. Preliminarily, we note that this claim, given that it impacts the voluntariness of her plea, survives defendant's appeal waiver regardless of its validity (see People v. Carroll, 172 A.D.3d 1821, 1821, 99 N.Y.S.3d 520 [2019], lv denied 34 N.Y.3d 929, 109 N.Y.S.3d 743, 133 N.E.3d 448 [2019] ). We additionally note that it does not appear that defendant made a postallocution motion to withdraw her plea on this ground, thereby rendering her claim unpreserved (see People v. Horton, 173 A.D.3d 1342, 1343, 102 N.Y.S.3d 761 [2019], lv denied 34 N.Y.3d 932, 109 N.Y.S.3d 701, 133 N.E.3d 401 [2019] ; People v. White, 172 A.D.3d 1822, 1823–1824, 101 N.Y.S.3d 519 [2019], lv denied 33 N.Y.3d 1110, 106 N.Y.S.3d 661, 130 N.E.3d 1271 [2019] ). Because, however, "defendant pleaded guilty and was sentenced in the same proceeding," she did not have the practical opportunity to make a timely postallocution motion ( People v. Griffin, 165 A.D.3d 1316, 1317, 84 N.Y.S.3d 601 [2018] ). Under these circumstances, defendant's claim is properly before us.
As to the merits, the record belies defendant's contention that she was rushed into pleading guilty. Furthermore, defendant does not dispute that she received a favorable result and admitted during the plea proceeding that she was satisfied with counsel's representation. Viewing counsel's representation in its entirety, defendant was not deprived of meaningful representation (see People v. Briggs, 138 A.D.3d 1355, 1356, 30 N.Y.S.3d 748 [2016], lv denied 28 N.Y.3d 927, 40 N.Y.S.3d 355, 63 N.E.3d 75 [2016] ; People v. Salaman, 293 A.D.2d 874, 875, 742 N.Y.S.2d 136 [2002] ). Defendant's remaining contentions have been considered and are unavailing.
Garry, P.J., Egan Jr., Mulvey and Reynolds Fitzgerald, JJ., concur.
ORDERED that the judgment is affirmed.