| People v Lydecker |
| 2014 NY Slip Op 02466 [116 AD3d 1160] |
| April 10, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vChristopher D. Lydecker, Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler ofcounsel), for respondent.
Stein, J. Appeals (1) from a judgment of the County Court of Saratoga County(Scarano, J.), rendered September 9, 2011, convicting defendant upon his plea of guiltyof the crime of criminal possession of a forged instrument in the first degree, and (2) bypermission, from an order of said court, entered January 30, 2013, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
In April 2011, defendant was charged by indictment with criminal possession of aforged instrument in the first degree (two counts), criminal possession of a weapon in thethird degree, criminal possession of stolen property in the fourth degree and grandlarceny in the fourth degree. He subsequently pleaded guilty to one count of criminalpossession of a forged instrument in the first degree in full satisfaction of the indictmentand was sentenced, as a second felony offender and in accord with the plea agreement, toa prison term of 7½ to 15 years. As part of the plea, defendant also waived the rightto appeal from the conviction and sentence.
Defendant thereafter moved to vacate the judgment of conviction pursuant to CPL440.10, claiming that he was denied the effective assistance of counsel because hisattorney did not move to dismiss the indictment on statutory speedy trial grounds. CountyCourt denied the motion without a hearing. Defendant now appeals from both thejudgment of conviction and, by [*2]permission, from theorder denying his CPL article 440 motion. Finding both appeals to be lacking in merit,we affirm.
With respect to his direct appeal from the judgment of conviction, defendant'sstatutory speedy trial claim was waived by his guilty plea (see People v Friscia,51 NY2d 845, 847 [1980]; People v Devino, 110 AD3d 1146, 1147 [2013]; People v Mercer, 105 AD3d1091, 1092 [2013]; lv denied 21 NY3d 1017 [2013]; People v Spence, 101 AD3d1477, 1478 [2012]). Nonetheless, inasmuch as his claim of ineffective assistance ofcounsel impacts the voluntariness of his plea, such claim survives the appeal waiver andwas preserved by his CPL article 440 motion (see People v Devino, 110 AD3d at1147; compare People vSlingerland, 101 AD3d 1265, 1267 [2012], lv denied 20 NY3d 1104[2013]). In that regard, we reject defendant's assertion that County Court erred by failingto conduct a hearing on the motion inasmuch as the record and motion papers before thatcourt permitted an adequate review (see People v Carter, 105 AD3d 1149, 1151 [2013]; People v Demetsenare, 14AD3d 792, 793 [2005]; seealso People v LaPierre, 108 AD3d 945, 946 [2013]).
Turning to the merits of defendant's argument, we have held that " '[a] single error offailing to raise a meritorious speedy trial claim [may be] sufficiently egregious to amountto ineffective assistance of counsel' " (People v Devino, 110 AD3d at 1147,quoting People v Garcia, 33AD3d 1050, 1052 [2006], lv denied 9 NY3d 844 [2007]). However, counselwill not be deemed ineffective for his or her failure to make a motion that would havehad little or no chance of success (see People v Caban, 5 NY3d 143, 152 [2005]; People v Clarke, 110 AD3d1341, 1345 [2013]).
As relevant here, New York's speedy trial statute requires the People to declare theirreadiness for trial within six months of the commencement of the criminal action(see CPL 30.30 [1] [a]; People v Miller, 113 AD3d 885, 886 [2014]). Thesix-month period is calculated "by computing the time elapsed between the filing of thefirst accusatory instrument and the People's declaration of readiness, subtracting anyperiods of delay that are excludable under the terms of the statute" (People v Smith, 110 AD3d1141, 1142 [2013] [internal quotation marks and citations omitted]; accordPeople v Cortes, 80 NY2d 201, 208 [1992]; see CPL 1.20 [16] [a], [b]). Theinstant felony action was commenced on October 15, 2010, when three felony complaintswere filed against defendant (see People v Lowman, 103 AD3d 976, 977 [2013];People ex rel. Greenstein v Sheriff of Schenectady County, 220 AD2d 190,192-193 [1996]).[FN1]The People stated their readiness for trial on April 18, 2011—when defendant wasarraigned on the indictment—more than six months after the commencement ofthe action. Thus, to avoid a statutory speedy trial violation, the People would have beenrequired to demonstrate that sufficient periods of the delay were not chargeable to thePeople (see People v Cortes, 80 NY2d at 210; People v Devino, 110AD3d at 1148).[*3]
In opposition to defendant's CPL article 440motion, the People proffered, among other things, a court adjournment record and theaffirmation of John Hogan, one of defendant's trial counsel.[FN2]Hogan averred that, during his representation of defendant, he made adjournmentrequests on defendant's behalf that resulted in more than 100 days of prereadiness delay.Excluding the periods of delay resulting from such adjournments from the timechargeable to the People (see CPL 30.30 [4] [b]; People v Seamans, 85 AD3d1398, 1399 [2011]), and considering that defendant did not allege any postreadinessdelay attributable to the People, the People declared their readiness for trial within therequisite six-month period. Consequently, defendant was not denied his statutory right toa speedy trial and his counsel was not ineffective for failing to make a motion premisedupon those grounds (see Peoplev Jackson, 64 AD3d 1248, 1250 [2009], lv denied 13 NY3d 745[2009]).
We have reviewed defendant's remaining contentions, including that the indictmentwas jurisdictionally defective, and find them to be lacking in merit.
Peters, P.J., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote 1: One month before thesefelony complaints were filed, defendant was charged in a misdemeanor complaint withcriminal possession of a weapon in the fourth degree for possessing a metal gravity knife.We reject defendant's claim that the six-month speedy trial period ran from the filing ofthis accusatory instrument, as the allegations contained therein were unrelated to theconduct forming the basis for the charges set forth in the indictment (see People vLowman, 103 AD3d at 977).
Footnote 2: We are unpersuaded bydefendant's argument that the relevant statements in Hogan's affirmation constitutedprivileged information, as an adjournment request made by counsel in open court is not aprivileged communication (see CPLR 4503 [a] [1]). Our review of suchaffirmation—which also contains extraneous information unrelated to the speedytrial issue—is limited to that portion detailing defendant's adjournment requests.