| People v Card |
| 2013 NY Slip Op 04350 [107 AD3d 820] |
| June 12, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Javier Card, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and LoriGlachman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Mastro, J.), rendered September 5, 1995, convicting him of murder in the second degree,reckless endangerment in the first degree, and criminal possession of a weapon in thesecond degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Since the defendant never made a pretrial motion to dismiss the indictment on theground that he was denied his statutory right to a speedy trial, he waived his right to adismissal on statutory speedy trial grounds (see CPL 210.20 [1] [g]; People vLawrence, 64 NY2d 200, 203-204 [1984]). Furthermore, insofar as the issue israised for the first time on appeal, the defendant's contention that his constitutionalspeedy trial rights were violated is unpreserved for appellate review (see People vJordan, 62 NY2d 825, 826 [1984]; People v Cedeno, 52 NY2d 847 [1981];People v Davison, 92 AD3d691, 692 [2012]; People v Sease, 305 AD2d 700, 701 [2003]; People vSt. Gelais, 245 AD2d 318, 319 [1997]; People v Lee, 207 AD2d 415, 416[1994]; People v Moss, 188 AD2d 620, 620-621 [1992]). " 'In any event, reviewof the constitutional issue[s] is precluded by the lack of an adequate record[,] which itwas defendant's burden to provide' " (People v Smith, 48 AD3d 1095, 1096 [2008], quotingPeople v James, 188 AD2d 296, 296 [1992]).
The defendant additionally contends that he was denied his right to the effectiveassistance of counsel with respect to plea negotiations. However, because the defendant'sclaim is based on matter dehors the record, it cannot be reviewed on direct appeal (see People v Johnson, 64AD3d 792, 793 [2009]; People v Sloane, 59 AD3d 745 [2009]; People v LeGrady, 50 AD3d1059, 1060 [2008]; Peoplev Shemack, 46 AD3d 582, 583 [2007]).
The defendant's remaining contention is unpreserved for appellate review and, in anyevent, without merit. Rivera, J.P., Hall, Cohen and Miller, JJ., concur.
Cross motion by the respondent on an appeal from a judgment of the Supreme Court,Kings County, rendered September 6, 1995, to strike Point II of the appellant's brief andthe appellant's appendix on the ground that they contain or refer to matter dehors therecord. By decision and order on motion of this Court dated February 8, 2013, the crossmotion was held in abeyance and referred to the panel of Justices hearing the appeal fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto,and upon the argument of the appeal, it is
Ordered that the cross motion is granted, and Point II of the appellant's brief and theappellant's appendix are deemed stricken and have not been considered in thedetermination of the appeal. Rivera, J.P., Hall, Cohen and Miller, JJ., concur.