| People v Walter |
| 2016 NY Slip Op 03350 [138 AD3d 1479] |
| April 29, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vWilliam I. Walter, Appellant. |
Karpinski, Stapleton & Tehan, P.C., Auburn (Adam H. Vanbuskirk of counsel),for defendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Brian T. Leeds of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.),rendered February 5, 2015. The judgment convicted defendant, upon his plea of guilty,of attempted burglary in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of attempted burglary in the third degree (Penal Law §§ 110.00,140.20). Insofar as defendant contends that he was denied his right to a speedy trialpursuant to CPL 30.30, we note that, " '[w]hen defendant entered a plea ofguilty[,] he forfeited his right to claim that he was deprived of a speedy trialunder' " that statute (People v Schillawski, 124 AD3d 1372, 1372-1373 [2015],lv denied 25 NY3d 1207, quoting People v O'Brien, 56 NY2d 1009, 1010[1982]; see People vPaduano, 84 AD3d 1730, 1730 [2011]).
Furthermore, "[a]lthough defendant's contention that he was deprived of hisconstitutional right to a speedy trial survives his plea of guilty" (Schillawski, 124AD3d at 1373), we also note that, in his pro se motion, " 'defendant moved todismiss the indictment on statutory speedy trial grounds only and thus failed to preservefor our review his present contention that he was denied his constitutional right to aspeedy trial' " (id.; see People v Weeks, 272 AD2d 983, 983[2000], lv denied 95 NY2d 872 [2000]). In any event, defendant's contention iswithout merit. Upon our review of the record in light of the relevant factors (seePeople v Taranovich, 37 NY2d 442, 445 [1975]), we conclude that those factorswould have compelled denial of a motion based on defendant's constitutional right to aspeedy trial, and we note in particular that " 'there [was] a complete lack of anyevidence that the defense was impaired by reason of the delay' "(Schillawski, 124 AD3d at 1373; see People v Benjamin, 296 AD2d 666,667 [2002]).
Finally, defendant contends that he was denied effective assistance of counsel as aresult of defense counsel's failure to make a motion to dismiss the indictment based onthe denial of his statutory right to a speedy trial (see CPL 30.30 [1] [a]).Defendant's contention is "foreclosed by his plea of guilty because he failed to allege thatthe plea bargaining process was infected by [the] allegedly ineffective assistance or that[he] entered the plea because of his attorney's allegedly poor performance" (People v Nieves-Rojas, 126AD3d 1373, 1373 [2015] [internal quotation marks omitted]; see People v Wright, 66 AD3d1334, 1334 [2009], lv denied 13 NY3d 912 [2009]; see also People v Gleen, 73AD3d 1443, 1444 [2010], lv denied 15 NY3d 773 [2010]). In any event, wenote that the record on appeal is inadequate to enable us to determine whether such amotion would have been successful and whether defense counsel was ineffective forfailing to make that motion and thus, defendant's contention must be raised by way of amotion pursuant to CPL article 440 (see People v Youngs, 101 AD3d 1589, 1589 [2012], lvdenied 20 NY3d 1105 [2013]; Paduano, 84 AD3d at 1731).Present—Centra, J.P., Carni, DeJoseph, Curran and Scudder, JJ.