People v Archie

2014 NY Slip Op 02468 [116 AD3d 1165]

April 10, 2014

Appellate Division, Third Department

As corrected through Wednesday, May 28, 2014

The People of the State of New York, Respondent, vDamarion Archie, Appellant.

—[*1]Rosemary Phillips, Canton, for appellant.

Derek P. Champagne, District Attorney, Malone (Craig P. Carriero of counsel), forrespondent.

Rose, J. Appeal from a judgment of the County Court of St. Lawrence County (Richards,J.), rendered August 13, 2012, convicting defendant upon his plea of guilty of the crimeof attempted promoting prison contraband in the first degree.

Defendant was found in possession of a razor blade while incarcerated at theGouverneur Correctional Facility in St. Lawrence County in November 2010, but he wasnot arraigned on a sealed indictment for promoting prison contraband in the first degreeuntil January 2012. He pleaded guilty to a reduced charge and was sentenced as a secondfelony offender to a negotiated prison term to be served consecutively to the sentence forwhich he was then incarcerated. He now appeals, and we affirm.

While defendant's argument that the pre-arraignment delay violated his constitutionalright to a speedy trial survives his guilty plea and waiver of appeal, it is unpreservedbecause he failed to raise it before County Court (see People v Bancroft, 23 AD3d 850, 851 [2005], lvdenied 6 NY3d 752 [2005]; People v Alger, 23 AD3d 706, 706 [2005], lvdenied 6 NY3d 845 [2006]). Were we to consider the speedy trial issue, we wouldfind it to be without merit (seePeople v Weatherspoon, 86 AD3d 792, 792 [2011], lv denied 17 NY3d905 [2011]; People vStriplin, 48 AD3d 878, 879-880 [2008], lv denied 10 NY3d 871 [2008];People v Hernandez, 42AD3d 657, 662 [2007]).[*2]

Defendant also argues that his counsel's failure toraise the issue amounts to ineffective assistance, but we cannot entertain this argumentbecause he failed to make an appropriate postallocution motion and the alleged failure ofcounsel is not related to the voluntariness of his plea (see People v Speranza, 96 AD3d 1164, 1165 [2012]; People v Golgoski, 43 AD3d551, 552 [2007]). In any event, inasmuch as the speedy trial issue is without merit,defense counsel's failure to raise it cannot be ineffective assistance (see People vWeatherspoon, 86 AD3d at 793; People v Alger, 23 AD3d at 707).

Peters, P.J., Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.