| People v Tuper |
| 2014 NY Slip Op 04271 [118 AD3d 1144] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMichael Tuper, Appellant. |
Henry C. Meier, Delmar, for appellant.
Marsha K. Purdue, District Attorney, Indian Lake, for respondent.
Lahtinen, J.P. Appeals from a judgment of the County Court of Franklin County(Main Jr., J.), rendered October 16, 2012, convicting defendant upon his plea of guilty ofthe crimes of burglary in the second degree (seven counts), burglary in the third degree(three counts), criminal possession of marihuana in the second degree and criminalpossession of a weapon in the third degree.
Defendant was implicated in a string of burglaries committed in December 2009, andquickly entered into a cooperation and plea agreement with the People wherein headmitted committing certain crimes and represented that he could secure his brother'srecorded admission to an unrelated murder. Assuming that defendant succeeded, thePeople agreed to do nothing beyond take his efforts into consideration and make "any[c]ourt . . . aware of his cooperation." Defendant did not succeed and, in2011, he was charged in two indictments with various offenses.
Despite a pending motion to determine, among other things, the scope andenforceability of the cooperation and plea agreement, defendant elected to waive his rightto appeal and plead guilty to the indictments in their entirety. County Court, in return,agreed to impose an aggregate prison sentence of no more than eight years. Defendantsubsequently filed a motion to withdraw his pleas, citing the People's alleged failure toabide by the cooperation and plea agreement. County Court denied the motion andsentenced defendant, as a second felony [*2]offender, toan aggregate prison term of eight years, to be followed by postrelease supervision of fiveyears. These appeals ensued.
We affirm. Defendant first contends that County Court abused its discretion indeclining to grant his motion to withdraw his guilty pleas. "Whether a defendant shouldbe permitted to withdraw his or her plea rests within the sound discretion of the trialcourt and, generally, such a motion should not be granted absent a showing of innocence,fraud or mistake in the inducement" (People v Galvan, 107 AD3d 1058, 1058-1059 [2013][citations omitted], lv denied 21 NY3d 1042 [2013]; accord People v Barton, 113AD3d 927, 928 [2014]). Defendant elected to plead guilty rather than pursue hisclaim that the People had made an oral sentencing promise as part of the cooperation andplea agreement and, indeed, he acknowledged during the plea colloquy that any previoussentencing promise had been withdrawn and was no longer valid. The record thusreflects that defendant's guilty pleas were knowing and voluntary and, as such, CountyCourt properly denied his motion to withdraw them.
Defendant's remaining argument is that his constitutional right to a speedy trial wasviolated by the delay between his admission of criminal activity in December 2009 andthe filing of the indictments in May 2011, approximately 15 months later. While thisclaim survives both his guilty pleas and waiver of the right to appeal (see People v Irvis, 90 AD3d1302, 1303 [2011], lv denied 19 NY3d 962 [2012]), it is without merit. Inreviewing a claim of a constitutional speedy trial violation, "[t]he five factors to beconsidered are: (1) the extent of the delay; (2) the reason for the delay; (3) the nature ofthe underlying charges; (4) any extended period of pretrial incarceration; and (5) anyimpairment of defendant's defense" (People v Romeo, 12 NY3d 51, 55 [2009], certdenied 558 US 817 [2009]; see People v Anderson, 114 AD3d 1083, 1084 [2014],lv denied 22 NY3d 1196 [2014]). It is apparent that defendant was notimmediately charged for the serious crimes at issue here because he agreed to participatein the criminal investigation of his brother. He was only arrested and indicted after hefailed to obtain admissions related to that investigation and, indeed, was not jailed on thepresent charges until March 2011. There is also no indication that this delay impaireddefendant's ability to prepare a defense and, upon due consideration of the relevantfactors, we find that his constitutional right to a speedy trial was not violated (see People v McCorkle, 67AD3d 1249, 1251 [2009]; People v Arrington, 31 AD3d 801, 802 [2006], lvdenied 7 NY3d 865 [2006]).
Stein, Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.