| People v Schillawski |
| 2015 NY Slip Op 00127 [124 AD3d 1372] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Richard A. Schillawski, Appellant. (Appeal No.1.) |
Currier Law Firm, P.C., Auburn (Rebecca Currier of counsel), fordefendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Nathan J. Garland of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.),rendered July 18, 2013. The judgment revoked defendant's sentence of probation andimposed a sentence of incarceration.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment, entered upon hisadmission to violating the terms of his probation, revoking a previously imposedsentence of probation and sentencing him to a term of incarceration on the underlyingconviction of grand larceny in the fourth degree (Penal Law § 155.30 [1]).In appeal No. 2, defendant appeals from a judgment convicting him, upon his plea ofguilty, of an additional charge of grand larceny in the fourth degree(§ 155.30 [7]).
Defendant did not move to withdraw his admission or plea or to vacate the judgmentof conviction in either appeal and thus failed to preserve for our review his contention ineither appeal that his admission or plea of guilty was not voluntarily entered (see People v Boyden, 112AD3d 1372, 1372-1373 [2013], lv denied 23 NY3d 960 [2014]; People v Ruffins, 78 AD3d1627, 1628 [2010]; Peoplev Diaz, 62 AD3d 1252, 1252 [2009], lv denied 12 NY3d 924 [2009]).This case does not fall within the narrow exception to the preservation requirement(see generally People v Lopez, 71 NY2d 662, 666 [1988]). Insofar as defendantcontends in appeal No. 2 that County Court erred in denying his motion to dismiss theindictment on statutory speedy trial grounds, we note that, "[w]hen defendant entered aplea of guilty[,] he forfeited his right to claim that he was deprived of a speedy trial underCPL 30.30" (People v O'Brien, 56 NY2d 1009, 1010 [1982]; see People v Paduano, 84AD3d 1730, 1730 [2011];People v Faro, 83 AD3d 1569, 1569 [2011], lv denied 17 NY3d 858[2011]). Although defendant's contention that he was deprived of his constitutional rightto a speedy trial survives his plea of guilty (see People v Romeo, 47 AD3d 954, 957 [2008],affd 12 NY3d 51 [2009], cert denied 558 US 817 [2009]), "defendantmoved to dismiss the indictment on statutory speedy trial grounds only and thus failed topreserve for our review his present contention that he was denied his constitutional rightto a speedy trial" (People v Weeks, 272 AD2d 983, 983 [2000], lv denied95 NY2d 872 [2000]; seePeople v Chinn, 104 AD3d 1167, 1169 [2013], lv denied 21 NY3d 1014[2013]; People v Bradberry,68 AD3d 1688, 1690 [2009], lv denied 14 NY3d 838 [2010]). In any event,that contention is without merit. Upon our review of the record in light of the factorsrelevant to such a challenge (see People v Taranovich, 37 NY2d 442, 445[1975]), we conclude that those factors would have compelled denial of such a motion,and we note in particular that "there [was] a complete lack of any evidence that thedefense was impaired by reason of the delay" (People v Benjamin, 296 AD2d666, 667 [2002]; see People vPulvino, 115 AD3d 1220, 1222-1223 [2014], lv denied 23 NY3d 1024[2014]; People v Doyle, 50AD3d 1546, 1546 [2008]).
Finally, the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Smith, Carni, Lindley and Sconiers, JJ.