| People v Smith |
| 2008 NY Slip Op 00835 [48 AD3d 1095] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ThernellSmith, Appellant. |
—[*1] James B. Vargason, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, J.), renderedAugust 8, 2006. The judgment convicted defendant, upon his plea of guilty, of assault in thesecond degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of twocounts of assault in the second degree (Penal Law § 120.05 [7]), defendant contends thathe was denied his constitutional right to a speedy trial and his due process right to promptprosecution. Defendant failed to move to dismiss the indictment on those grounds, however, andthus failed to preserve that contention for our review (see People v Cedeno, 52 NY2d 847[1981]; People v Peck, 31 AD3d1216 [2006], lv denied 9 NY3d 992 [2007]; People v Robinson, 1 AD3d 1019, 1020 [2003], lv denied 2NY3d 745 [2004]; People v Dewitt, 295 AD2d 937, 938 [2002], lv denied 98NY2d 709, 767 [2002]). "In any event, review of the constitutional issue[s] is precluded by thelack of an adequate record[,] which it was defendant's burden to provide" (People vJames, 188 AD2d 296 [1992]; see Dewitt, 295 AD2d at 938).
Finally, we note that the certificate of conviction incorrectly reflects that defendant wasconvicted of two counts of assault on a peace officer (Penal Law § 120.08), and it musttherefore be amended to reflect that he was convicted of two counts of assault in the seconddegree (§ 120.05 [7]; seegenerally People v Saxton, 32 AD3d 1286 [2006]). Present—Hurlbutt, J.P.,Smith, Fahey, Peradotto and Pine, JJ.