| People v Paduano |
| 2011 NY Slip Op 03763 [84 AD3d 1730] |
| May 6, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Anthony J.Paduano, Appellant. |
—[*1] Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), renderedAugust 11, 2009. The judgment convicted defendant, upon his plea of guilty, of grand larceny inthe third degree.
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 grandlarceny in the third degree (Penal Law § 155.35), defendant contends that he was deniedhis right to a speedy trial pursuant to CPL 30.30. By pleading guilty, however, defendantforfeited that contention (see People v O'Brien, 56 NY2d 1009, 1010 [1982]; Peoplev Suarez, 55 NY2d 940, 942 [1982]). In any event, defendant's contention does not survivehis valid waiver of the right to appeal (see People v Barnes, 41 AD3d 1309 [2007], lv denied 9NY3d 920 [2007]; People v Tracey,13 AD3d 1174 [2004], lv denied 4 NY3d 836 [2005]). Defendant mistakenly relieson People v Seaberg (74 NY2d 1, 9 [1989]) in support of his contention that his statutoryright to a speedy trial cannot be waived inasmuch as Seaberg concerned theconstitutional right to a speedy trial (see generally People v Weeks, 272 AD2d983 [2000], lv denied 95 NY2d 872 [2000]). Even assuming, arguendo, that defendant'scontention included a constitutional speedy trial claim, we conclude that such a claim may bevoluntarily surrendered or abandoned (see People v Rodriguez, 50 NY2d 553, 557[1980]; People v Denis, 276 AD2d 237, 247 [2000], lv denied 96 NY2d 782, 861[2001]), and the record demonstrates that defendant withdrew his speedy trial motion beforepleading guilty.
Defendant's further contention that he was denied effective assistance of counsel does notsurvive the plea or his valid waiver of the right to appeal "because defendant failed todemonstrate that 'the plea bargaining process was infected by [the] allegedly ineffectiveassistance or that defendant entered the plea because of [defense counsel's] allegedly poorperformance' " (People v Wright, 66AD3d 1334 [2009], lv denied 13 NY3d 912 [2009]). In any event, to the extent thatdefendant contends that defense counsel was ineffective for withdrawing his speedy trial motion,we note that the reasons for withdrawal are not disclosed in the record, and thus defendant'scontention involves matters outside the record on appeal and must be raised by way of a motionpursuant to CPL 440.40 (see generallyPeople v Cobb, 72 AD3d 1565, 1567 [2010], lv denied 15 NY3d 803 [2010]; People v Griffin, 48 AD3d 1233,1236 [2008], lv denied 10 NY3d 840 [2008]). Present—Centra, J.P., Fahey,Lindley, Gorski and Martoche, JJ.