Opinion
854 KA 19-01870
12-23-2022
The PEOPLE of the State of New York, Respondent, v. Jamell WORKS, Defendant-Appellant. (Appeal No. 1.)
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a guilty plea of criminal possession of a weapon in the third degree ( Penal Law § 265.02 [1] ). In appeal No. 2, defendant appeals from a judgment convicting him upon a guilty plea of driving while ability impaired by drugs as a class E felony ( Vehicle and Traffic Law §§ 1192 [4] ; 1193 [1] [c] [i] [A]). In appeal No. 3, defendant appeals from a judgment convicting him upon a guilty plea of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs as a class E felony ( §§ 1192 [4-a] ; 1193 [1] [c] [i] [A]). In appeal No. 4, defendant appeals from a judgment convicting him upon a guilty plea of aggravated unlicensed operation of a motor vehicle in the first degree (§ 511 [3] [a]).
Defendant initially contends in all four appeals that his plea was "improperly" entered because he provided only "yes" and "no" responses to questions asked of him during the plea colloquy. Defendant, however, failed to preserve that contention for our review (see People v. Pagan , 200 A.D.3d 1724, 1725, 155 N.Y.S.3d 915 [4th Dept. 2021], lv denied 38 N.Y.3d 953, 165 N.Y.S.3d 451, 185 N.E.3d 972 [2022] ; People v. Turner , 175 A.D.3d 1783, 1784, 109 N.Y.S.3d 528 [4th Dept. 2019], lv denied 34 N.Y.3d 1082, 116 N.Y.S.3d 177, 139 N.E.3d 835 [2019] ). In any event, defendant's contention lacks merit (see Pagan , 200 A.D.3d at 1725, 155 N.Y.S.3d 915 ; People v. Bennett , 165 A.D.3d 1624, 1625, 85 N.Y.S.3d 662 [4th Dept. 2018] ).
Defendant further contends in all four appeals that his constitutional right to a speedy trial was violated. We reject that contention. Preliminarily, we note that, as the People correctly concede, the waiver of defendant's right to a speedy trial under CPL 30.30 that defense counsel signed did not encompass defendant's constitutional speedy trial contention. However, defendant's contention that his constitutional right to a speedy trial was violated is unpreserved for our review because defendant failed to move to dismiss the accusatory instruments on that ground (see People v. Chinn , 104 A.D.3d 1167, 1169, 960 N.Y.S.2d 788 [4th Dept. 2013], lv denied 21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392 [2013] ; People v. Kemp , 270 A.D.2d 927, 927, 706 N.Y.S.2d 654 [4th Dept. 2000], lv denied 95 N.Y.2d 836, 713 N.Y.S.2d 143, 735 N.E.2d 423 [2000] ). In any event, defendant's contention lacks 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 [1975] ), 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" ( People v. Benjamin , 296 A.D.2d 666, 667, 745 N.Y.S.2d 130 [3d Dept. 2002] ; see People v. Schillawski , 124 A.D.3d 1372, 1373, 999 N.Y.S.2d 657 [4th Dept. 2015], lv denied 25 N.Y.3d 1207, 16 N.Y.S.3d 529, 37 N.E.3d 1172 [2015] ).
Defendant further contends in all four appeals that he was denied effective assistance of counsel because defense counsel waived defendant's statutory speedy trial rights and because defense counsel failed to pursue an allegedly meritorious motion on constitutional speedy trial grounds. That contention, however, does not survive defendant's guilty plea inasmuch as defendant does not contend " ‘that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [defense counsel's] allegedly poor performance’ " ( People v. Lucieer , 107 A.D.3d 1611, 1612, 967 N.Y.S.2d 575 [4th Dept. 2013] ; see People v. Brinson , 151 A.D.3d 1726, 1726, 55 N.Y.S.3d 564 [4th Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ; see also People v. Speranza , 96 A.D.3d 1164, 1165, 945 N.Y.S.2d 817 [3d Dept. 2012] ).
We perceive no basis in the record for us to exercise our power to modify the negotiated sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b] ). Finally, we have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgments.