| People v Franco |
| 2013 NY Slip Op 01570 [104 AD3d 790] |
| March 13, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jairo Franco, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and VictorBarall of counsel; Robert Ho on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Tomei, J.), rendered October 22, 2009, convicting him of rape in the second degree,upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Although a claim that a plea of guilty was not voluntary survives a valid waiver ofthe right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]), the defendant'scontentions that he is innocent and that his plea was not voluntary because it was coercedare unpreserved for appellate review since he did not move to vacate his plea orotherwise raise these issues before the Supreme Court (see People v Lewandowski, 82AD3d 1602, 1602 [2011]; People v Mitchell, 69 AD3d 883, 883 [2010]; see alsoPeople v Clarke, 93 NY2d 904, 906 [1999]; People v Lopez, 71 NY2d 662,665-666 [1988]; People vBolton, 63 AD3d 1087 [2009]; People v Antoine, 59 AD3d 560 [2009]). "In any event, aplea of guilty will be upheld as valid if it was entered knowingly, voluntarily, andintelligently" (People vTuffini, 101 AD3d 1053, 1053 [2012]; see People v Fiumefreddo, 82NY2d 536, 543 [1993]; People v Lopez, 71 NY2d at 666; People vHarris, 61 NY2d 9, 17 [1983]). Here, the record demonstrates that the defendant'splea of guilty was knowingly, voluntarily, and intelligently entered.
"A criminal defendant's right to a speedy trial is guaranteed both by the SixthAmendment to the United States Constitution (US Const 6th, 14th Amends) and bystatute (CPL 30.20; Civil Rights Law § 12)" (People v Romeo, 12 NY3d 51, 55 [2009], certdenied 558 US 817 [2009]). "Violation of this right results in dismissal of anindictment" (id. at 55; see Strunk v United States, 412 US 434, 439-440[1973]; People v Taranovich, 37 NY2d 442, 444 [1975]). By pleading guilty, thedefendant forfeited appellate review of his claim that his statutory right to a speedy trialpursuant to CPL 30.30 was violated (see People v O'Brien, 56 NY2d 1009, 1010[1982]; People v Howe, 56 NY2d 622, 624 [1982]; People v Gerber, 182AD2d 252, 260 [1992]). However, the defendant's constitutional speedy trial claimsurvives both the entry of his plea of guilty and the valid waiver of his right to appeal(see People v Hansen, 95 NY2d 227, 230-231 [2000]). Upon balancing all thefactors to be considered in connection with the defendant's constitutional speedy trialclaim (see People v Taranovich, 37 NY2d [*2]at445), we find that the defendant's right to a speedy trial was not violated.
By waiving his right to appeal, the defendant gave up the right to challenge theadequacy of defense counsel's representation, except insofar as counsel's allegedineffectiveness affected the voluntariness of the defendant's plea (see People v Williams, 84AD3d 1417, 1418 [2011]). The defendant's contention that he was deprived of theeffective assistance of counsel insofar as counsel's alleged ineffectiveness affected thevoluntariness of the defendant's plea is based on matter dehors the record and, therefore,cannot be reviewed on direct appeal (see People v Cohen, 100 AD3d 919 [2012]; People v Cancel, 92 AD3d891, 891 [2012]; People vBivens, 88 AD3d 808, 809 [2011]; People v Romero, 82 AD3d 1013, 1013 [2011]; People v Burgess, 81 AD3d969, 970 [2011]; People vAnthoulis, 78 AD3d 854, 854-855 [2010]).
The defendant's remaining contentions were either forfeited by the entry of his pleaor waived by the defendant's valid waiver of his right to appeal, or are based on matterdehors the record (see People vMullen, 77 AD3d 686, 687 [2010]). Dillon, J.P., Balkin, Dickerson andHinds-Radix, JJ., concur.