| People v Jackson |
| 2009 NY Slip Op 05829 [64 AD3d 1248] |
| July 10, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Clifton A. Jackson, Appellant. |
—[*1] Cindy F. Intschert, District Attorney, Watertown (Walter M. Jeram, Jr., of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), renderedJune 30, 2008. The judgment convicted defendant, upon his plea of guilty, of criminal possessionof marihuana in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty,of criminal possession of marihuana in the second degree (Penal Law § 221.25). We rejectthe contention of defendant that his plea was coerced by statements of County Court. Althoughthe statements to which defendant objects are similar to those that we determined to be coercivein People v Flinn (60 AD3d1304 [2009]), here the court engaged defendant in an extensive discussion concerning theconsequences of pleading guilty prior to the plea colloquy, unlike the court in Flinn. Inaddition, the court explained to defendant that he could enter an Alford plea and affordeddefendant an opportunity to discuss the plea offer with his family. The court further indicatedthat defendant had raised "some really good arguments" but informed defendant that thosearguments would have to be raised at trial. We thus conclude on the record before us thatdefendant's reliance on Flinn is misplaced.
We agree with defendant, however, that his plea was not knowingly, intelligently andvoluntarily entered. Although defendant failed to preserve that contention for our review byfailing to move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v VanDeViver, 56 AD3d1118 [2008], lv denied 11 NY3d 931, reconsideration denied 12 NY3d 788[2009]), we nevertheless exercise our power to review it as a matter of discretion in the interestof justice (see CPL 470.15 [6] [a]). It is clear from the record that defendant retained hisright to appeal pursuant to the plea agreement. There is no indication in the record, however, thatdefendant understood that he forfeited other rights by pleading guilty, including his right tocontend that he was denied his statutory right to a speedy trial (see generally People vO'Brien, 56 NY2d 1009, 1010 [1982]). Although we would thus vacate the plea (see generally People v Morbillo, 56AD3d 694 [2008], lv denied 12 NY3d 786 [2009]), defendant has expressly rejectedthat relief, and we therefore affirm [*2]the judgment (see People v Dean, 52 AD3d 1308[2008], lv denied 11 NY3d 736 [2008]).
Although the contention of defendant that he was denied his statutory right to a speedy trialis properly before us inasmuch as it was not forfeited by the involuntary plea, we reject thatcontention (see generally CPL 30.30). The People's notice of readiness was not illusorydespite the fact that it was filed prior to defendant's arraignment because "it was possible for thedefendant to be arraigned—and the trial to proceed—" during the 24 days remainingin the statutory six-month period (People v Goss, 87 NY2d 792, 794 [1996]; seeCPL 30.30 [1] [a]). Any postreadiness delay in arraigning defendant is not attributable to thePeople inasmuch as "[a]rraigning . . . defendant upon indictment is exclusively acourt function" (Goss, 87 NY2d at 797; see generally CPL 210.10). Evenassuming, arguendo, that the 22 days between the date on which defense counsel informed thecourt that defendant was in federal custody and the date on which the order to produce defendantwas issued are chargeable to the People, based on their failure to utilize the applicable statutoryprocedure to secure defendant's presence (see People v Cropper, 202 AD2d 603, 605[1994], lv denied 84 NY2d 824 [1994]; see generally CPL 560.10), wenevertheless conclude that the People declared their readiness for trial within the six-monthperiod. We reject the further contention of defendant that the failure of defense counsel to pursuehis contention that he was denied his statutory right to a speedy trial constituted ineffectiveassistance of counsel, inasmuch as defendant was not in fact denied his statutory right to aspeedy trial (see People v Caban, 5NY3d 143, 152 [2005]; cf. People v O'Connell, 133 AD2d 970, 971-972 [1987]).Present—Scudder, P.J., Hurlbutt, Fahey, Green and Gorski, JJ.