| People v McCorkle |
| 2009 NY Slip Op 08707 [67 AD3d 1249] |
| November 25, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DarrellMcCorkle, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Lahtinen, J. Appeals (1) from a judgment of the Supreme Court (Lamont, J.), rendered May15, 2007 in Albany County, convicting defendant upon his plea of guilty of the crime ofattempted criminal sale of a controlled substance in the third degree, and (2) by permission, froman order of said court, entered July 8, 2008 in Albany County, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
In September 2005, defendant was arrested and accused of having committed the crime ofcriminal sale of a controlled substance in the third degree. He was then charged in an indictmentwith one count of the same crime in July 2006. Defendant ultimately pleaded guilty to one countof attempted criminal sale of a controlled substance in the third degree and waived his right toappeal. Supreme Court sentenced defendant, as agreed, to a prison term of 3½ years,followed by 1½ years of postrelease supervision. Defendant now appeals.[FN*][*2]
Defendant's sole argument on appeal, that he was deniedhis constitutional right to a speedy trial, survives both his guilty plea and appeal waiver (seePeople v King, 62 AD3d 1162, 1163 [2009]; People v Simpson, 34 AD3d 934, 935[2006], lv denied 8 NY3d 849 [2007]). In reviewing whether that right has been violated,the relevant factors "include the length of delay, reason for the delay, nature of the charges,extent of pretrial incarceration and any impairment to the defense caused by the delay"(People v King, 62 AD3d at 1163; see People v Romeo, 12 NY3d 51, 55 [2009],cert denied 558 US —, 130 S Ct 63 [2009]). Here, there was a 10-month delaybetween the initial charge and the indictment and readiness for trial. The available transcriptsshow that, at a minimum, over four months of that delay resulted from adjournments requestedor consented to by defense counsel. To the extent that defendant now suggests that he did notpersonally consent to these adjournments, his acquiescence may be inferred from his counsel'sactions, and "[t]he People are entitled to rely on counsel's apparent authority to act ondefendant's behalf" (People v Garcia, 33 AD3d 1050, 1052 [2006], lv denied 9NY3d 844 [2007]; see People v Crogan, 237 AD2d 745, 745 [1997], lv denied90 NY2d 857 [1997]). Moreover, defendant was not jailed from October 2005 to the date of hisarraignment so that he could cooperate with law enforcement as part of ongoing pleanegotiations. Nor is there any indication that his defense was hampered by the delay. After dueconsideration of the relevant factors, we cannot say that defendant's constitutional right to aspeedy trial was violated (see People v Arrington, 31 AD3d 801, 802 [2006], lvdenied 7 NY3d 865 [2006]).
Mercure, J.P., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the judgment and orderare affirmed.
Footnote *: Defendant also appeals, bypermission, from Supreme Court's denial of his motion to vacate the judgment of convictionpursuant to CPL 440.10. As he raises no arguments regarding that appeal in his brief, it isdeemed abandoned (see People v Gibson, 2 AD3d 969, 970 n 1 [2003], lv denied1 NY3d 627 [2004]; People v Ciborowski, 302 AD2d 620, 623 [2003], lv denied100 NY2d 579 [2003]).