| People v Speranza |
| 2012 NY Slip Op 04792 [96 AD3d 1164] |
| June 14, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JosephSperanza, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Mercure, J. Appeal, by permission, from an order of the County Court of Albany County(Herrick, J.), entered September 10, 2010, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting him of the crime of promoting prostitution in the thirddegree, without a hearing.
Defendant pleaded guilty to an indictment charging him with promoting prostitution in thethird degree and waived his right to appeal upon the understanding that County Court wouldsentence him to time served and five years of probation if he did not violate the plea agreement.That agreement required defendant to avoid new criminal charges and to cooperate with theProbation Department. Thereafter, defendant was less than forthcoming during the presentenceinvestigation and also was charged with aggravated unlicensed operation of a vehicle. CountyCourt therefore declined to impose the agreed-upon sentence and set the matter down for aviolation hearing. Defendant admitted to violating the plea agreement, and County Courtultimately imposed a sentence of 1 to 3 years in prison. Defendant now appeals from CountyCourt's denial of his CPL 440.10 motion to vacate the judgment of conviction.
We affirm. Defendant argues that he was deprived of the effective assistance of counsel dueto his attorney's failure to seek dismissal of the indictment on speedy trial grounds (seeCPL 440.10 [1] [h]; People v Condon, 184 AD2d 879, 880-881 [1992]). An ineffectiveassistance of [*2]counsel claim survives a valid appeal waiveronly insofar as it implicates the voluntariness of the guilty plea (see People v Nicholson, 50 AD3d1397, 1398-1399 [2008], lv denied 11 NY3d 834 [2008]; People v Hall, 16 AD3d 848, 849[2005], lv denied 4 NY3d 887 [2005]). Defendant has made no showing that he had ameritorious claim related to his constitutional speedy trial rights, or that the delay was notattributable to counsel's efforts in negotiating two favorable plea offers for defendant (cf. People v Garcia, 33 AD3d1050, 1052-1053 [2006], lv denied 9 NY3d 844 [2007]). Further, he stated duringthe plea colloquy and at the time of his subsequent admission to violating the plea agreement thathe had discussed potential defenses to the charges with counsel and was satisfied with therepresentation provided to him. Accordingly, inasmuch as defendant's contention does not impactthe voluntariness of his guilty plea, it does not survive his appeal waiver.
Defendant's remaining arguments, to the extent they survive his appeal waiver, areunpreserved for our review.
Peters, P.J., Rose, Lahtinen and Egan Jr., JJ., concur. Ordered that the order is affirmed.