| People v Zeigler |
| 2015 NY Slip Op 03874 [128 AD3d 737] |
| May 6, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Andrew Zeigler, Jr., Appellant. |
Mark Diamond, New York, N.Y., for appellant, and appellant pro se.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Ronnie Jane Lamm ofcounsel), for respondent.
Appeals by the defendant from (1) a judgment of the County Court, Suffolk County(Cohen, J.), rendered July 17, 2012, and (2) an amended judgment of the same court,rendered September 25, 2012, convicting him of robbery in the first degree andattempted robbery in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the appeal from the judgment is dismissed, as the judgment wassuperseded by the amended judgment; and it is further,
Ordered that the amended judgment is affirmed.
The defendant entered a plea of guilty to robbery in the first degree and attemptedrobbery in the first degree. As part of the plea agreement, he waived his right to appeal.The defendant was sentenced in accordance with the plea agreement. Subsequently, theCounty Court learned that the judgment imposed periods of postrelease supervision thatwere not permissible under the law, and offered the defendant the opportunity towithdraw his plea. The defendant declined the opportunity on the condition that he bepermitted to amend his waiver of the right to appeal to allow him to appeal the issue ofthe denial of his motion to dismiss the indictment on the ground that he was denied hisright to testify before the grand jury. The County Court consented to the amendment, andan amended judgment imposing sentence and the proper periods of postreleasesupervision was entered.
Contrary to the People's contention, under the circumstances of this case, thedefendant did not waive his challenge to the denial of his motion to dismiss theindictment on the ground that he was denied the right to testify before the grand jury bypleading guilty in the first instance. However, we find that the County Court properlydenied the motion, as the defendant waived his contention by failing to move to dismissthe indictment within five days after his arraignment thereon (see CPL 190.50 [5][c]; People v Simon, 101AD3d 908, 909 [2012]; People v Occhione, 94 AD3d 1021, 1022 [2012]; People v Venable, 7 AD3d647, 648 [2004]). Contrary to the defendant's contention, his attorney's failure toeffectuate his intention to testify before the grand jury, standing [*2]alone, did not constitute the denial of effective assistance ofcounsel (see People v Occhione, 94 AD3d at 1022; People v Venable, 7AD3d at 648).
The defendant's challenge to the procedure used to adjudicate him a second felonyoffender is precluded by his valid waiver of the right to appeal (see People vCallahan, 80 NY2d 273, 281 [1992]; cf. People v Evans, 121 AD3d 1012, 1012-1013 [2014]; People v Ingram, 118 AD3d722, 722 [2014]), as is his challenge to the denial of his statutory speedy trial motion(see People v Kidd, 100AD3d 779, 779 [2012]; People v Holland, 44 AD3d 874, 874 [2007]). Moreover,by pleading guilty, the defendant forfeited his right to review the speedy trial claim(see People v Kidd, 100 AD3d at 779).
Our review of the defendant's contention, raised in his pro se supplemental brief, thathe was deprived of the effective assistance of counsel, is precluded by his valid waiver ofthe right to appeal, since none of the deficiencies by counsel he alleges implicate thevoluntariness of his plea (seePeople v Gomez, 114 AD3d 701, 702 [2014]). Moreover, since his claim ofineffective assistance of counsel did not directly involve the plea bargaining process, thedefendant forfeited the claim by pleading guilty (see People v McGuire, 122 AD3d 947, 948 [2014]). Dillon,J.P., Leventhal, Austin and LaSalle, JJ., concur.