Opinion
357 KA 15-00649.
04-29-2016
The PEOPLE of the State of New York, Respondent, v. William I. WALTER, Defendant–Appellant.
Karpinski, Stapleton & Tehan, P.C., Auburn (Adam H. Vanbuskirk of Counsel), for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Brian T. Leeds of Counsel), For Respondent.
Karpinski, Stapleton & Tehan, P.C., Auburn (Adam H. Vanbuskirk of Counsel), for Defendant–Appellant.
Jon E. Budelmann, District Attorney, Auburn (Brian T. Leeds of Counsel), For Respondent.
PRESENT: CENTRA, J.P., CARNI, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
MEMORANDUM: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted burglary in the third degree (Penal Law §§ 110.00, 140.20 ). Insofar as defendant contends that he was denied his right to a speedy trial pursuant to CPL 30.30, we note that, “ ‘[w]hen defendant entered a plea of guilty[,] he forfeited his right to claim that he was deprived of a speedy trial under’ ” that statute (People v. Schillawski, 124 A.D.3d 1372, 1372–1373, 999 N.Y.S.2d 657, lv. denied 25 N.Y.3d 1207, 16 N.Y.S.3d 529, 37 N.E.3d 1172, quoting People v. O'Brien, 56 N.Y.2d 1009, 1010, 453 N.Y.S.2d 638, 439 N.E.2d 354 ; see People v. Paduano, 84 A.D.3d 1730, 1730, 922 N.Y.S.2d 726 ).
Furthermore, “[a]lthough defendant's contention that he was deprived of his constitutional right to a speedy trial survives his plea of guilty” (Schillawski, 124 A.D.3d at 1373, 997 N.Y.S.2d 658 ), we also note that, in his pro se motion, “ ‘defendant moved to dismiss the indictment on statutory speedy trial grounds only and thus failed to preserve for our review his present contention that he was denied his constitutional right to a speedy trial’ ” (id. ; see People v. Weeks, 272 A.D.2d 983, 983, 708 N.Y.S.2d 687, lv. denied 95 N.Y.2d 872, 715 N.Y.S.2d 227, 738 N.E.2d 375 ). In any event, defendant's contention is without merit. Upon our review of the record in light of the relevant factors (see People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 ), we conclude that those factors would have compelled denial of a motion based on defendant's constitutional right to a speedy trial, and we note in particular that “ ‘there [was] a complete lack of any evidence that the defense was impaired by reason of the delay’ ” (Schillawski, 124 A.D.3d at 1373, 997 N.Y.S.2d 658 ; see People v. Benjamin, 296 A.D.2d 666, 667, 745 N.Y.S.2d 130 ).
Finally, defendant contends that he was denied effective assistance of counsel as a result of defense counsel's failure to make a motion to dismiss the indictment based on the denial of his statutory right to a speedy trial (see CPL 30.30[1][a] ). Defendant's contention is “foreclosed by his plea of guilty because he failed to allege that the plea bargaining process was infected by [the] allegedly ineffective assistance or that [he] entered the plea because of his attorney's allegedly poor performance” (People v. Nieves–Rojas, 126 A.D.3d 1373, 1373, 5 N.Y.S.3d 654 [internal quotation marks omitted]; see People v. Wright, 66 A.D.3d 1334, 1334, 885 N.Y.S.2d 794, lv. denied 13 N.Y.3d 912, 895 N.Y.S.2d 326, 922 N.E.2d 915 ; see also People v. Gleen, 73 A.D.3d 1443, 1444, 900 N.Y.S.2d 812, lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055 ). In any event, we note that the record on appeal is inadequate to enable us to determine whether such a motion would have been successful and whether defense counsel was ineffective for failing to make that motion and thus, defendant's contention must be raised by way of a motion pursuant to CPL article 440 (see People v. Youngs, 101 A.D.3d 1589, 1589, 956 N.Y.S.2d 775, lv. denied 20 N.Y.3d 1105, 965 N.Y.S.2d 802, 988 N.E.2d 540 ; Paduano, 84 A.D.3d at 1731, 922 N.Y.S.2d 726 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.