People v King

2009 NY Slip Op 03963 [62 AD3d 1162]

May 21, 2009

Appellate Division, Third Department

As corrected through Wednesday, July 1, 2009

The People of the State of New York, Respondent, v Jacob M.King, Appellant.

—[*1]Francisco P. Berry, Ithaca, for appellant.

Mark D. Suben, District Attorney, Cortland (Jerome M. Mayersak of counsel), forrespondent.

Lahtinen, J. Appeal from a judgment of the County Court of Cortland County (Campbell, J.),rendered January 10, 2008, convicting defendant upon his plea of guilty of two counts of thecrime of rape in the third degree.

Defendant, who was then 27 years old, had sexual relations with a 16-year-old victim inFebruary 2006 and a 15-year-old victim in August 2006. Both victims were employed at a storewhere defendant was an assistant manager. The victim from the August 2006 incident contactedauthorities first, resulting in defendant being arraigned on various charges in October 2006, andindicted for several crimes in April 2007. Subsequently, the other victim came forward, leadingto another multicount indictment in June 2007. Defendant eventually pleaded guilty inSeptember 2007 to one count of rape in the third degree from each indictment and was sentencedto two concurrent prison terms of 11/3 to 4 years. Defendant's sole argument onappeal pertains to the April 2007 indictment and his contention that his constitutional right to aspeedy trial was violated as to the crimes charged therein. We are unpersuaded and, thus, affirm.

Initially, we note that defendant's constitutional speedy trial argument survives his guiltyplea and waiver of the right to appeal (see People v Simpson, 34 AD3d 934, 935 [2006], lvdenied 8 NY3d 849 [2007]). Factors in the constitutional speedy trial analysis include thelength of delay, reason for the delay, nature of the charges, extent of pretrial incarceration andany [*2]impairment to the defense caused by the delay (seePeople v Taranovich, 37 NY2d 442, 445 [1975]; People v Garcia, 46 AD3d 1120, 1120-1121 [2007], lvdenied 10 NY3d 863 [2008]). Defendant was first charged in October 2006, he was indictedin April 2007, and the People filed statements of readiness shortly after his indictment and againimmediately after his arraignment in May 2007. The total delay from the first charges toindictment and readiness was about seven months, and the time elapsed since commission of thecrime was well under one year. Defendant remained free during this time. Plea negotiations wereongoing and defendant executed a written waiver of speedy trial in December 2006, which wasnot thereafter retracted. Defendant's contention that the delay prejudiced his defense regardingthe charges in the April 2007 indictment is wholly speculative and unsupported by the record.Under the circumstances, defendant's constitutional right to a speedy trial was not violated (see People v Pitt, 43 AD3d 1248,1249 [2007], lv denied 9 NY3d 1008 [2007]; People v Arrington, 31 AD3d 801, 802 [2006], lv denied 7NY3d 865 [2006]; People vCintron, 7 AD3d 827, 828 [2004]).

Peters, J.P., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the judgment is affirmed.