| People v Gerald |
| 2017 NY Slip Op 06101 [153 AD3d 1029] |
| August 10, 2017 |
| Appellate Division, Third Department |
[*1](August 10, 2017)
| The People of the State of New York,Respondent, v Brandon Gerald, Appellant. |
Henry C. Meier, Delmar, for appellant.
Denise Kerrigan, Special Prosecutor, Cornwall, for respondent.
McCarthy, J.P. Appeals (1) from a judgment of the County Court of Greene County (PulverJr., J.), rendered February 7, 2012, convicting defendant upon his plea of guilty of the crime ofattempted assault in the second degree, and (2) by permission, from an order of said court(Tailleur, J.), entered January 27, 2016, which denied defendant's motion pursuant to CPL 440.10to vacate the judgment of conviction, without a hearing.
In February 2010, while an inmate at Greene Correctional Facility, defendant was accused ofassaulting a correction officer by, among other things, placing him in a choke hold.Approximately 14 months later, in April 2011, defendant was indicted on two counts of assaultin the second degree. Defendant subsequently pleaded guilty to one count of attempted assault inthe second degree and was sentenced, as a second felony offender, to 1
Defendant initially contends that his constitutional right to a speedy trial was denied as aresult of the 14-month delay between the February 2010 alleged assault and his April 2011 [*2]indictment. Although defendant's claim survives both his guiltyplea and his waiver of the right to appeal (see People v Lanfranco, 124 AD3d 1144, 1145 [2015], lvdenied 25 NY3d 1203 [2015]), it is unpreserved as he failed to raise it before County Court(Pulver Jr., J.) prior to his plea (seePeople v Archie, 116 AD3d 1165, 1165 [2014]). In any event, the contention is withoutmerit. Certainly, "[a]n unreasonable and unjustified indictment delay violates a defendant's dueprocess rights and may result in dismissal of the indictment, even when no prejudice results" (People v Alexander, 127 AD3d1429, 1430 [2015], lv denied 25 NY3d 1197 [2015]; see People v Lesiuk, 81NY2d 485, 490 [1993]). Here, the People failed to provide an adequate explanation for the14-month delay (see People v Lanfranco, 124 AD3d at 1145); however, we note thatdelays of similar lengths have been found not to violate a defendant's right to due process (see People v Williams, 120 AD3d1526, 1527 [2014] [14-month delay], lv denied 24 NY3d 1090 [2014]; People v Ruise, 86 AD3d 722, 723[2011] [13-month delay], lv denied 17 NY3d 861 [2011]; People v Hernandez, 42 AD3d657, 662 [2007] [14-month delay]). Moreover, in determining the reasonableness of such adelay in a particular case, we consider not only the length of and proffered explanation for thedelay, but also the nature of the underlying charge, whether there has been an extended period ofincarceration and whether there was any impairment to the defense attributable to the delay (see People v Romeo, 12 NY3d 51,55 [2009], cert denied 558 US 817 [2009]; People v Taranovich, 37 NY2d 442,445 [1975]). Here, the nature of defendant's charges were unquestionably serious (see People v Weatherspoon, 86 AD3d792, 793 [2011], lv denied 17 NY3d 905 [2011]) and, although defendant wasincarcerated during the relevant time period, his imprisonment related to a prior felonyconviction and therefore did not impose any additional burden on his liberty (see People v Morris, 25 AD3d915, 917 [2006], lv denied 6 NY3d 851 [2006]). Nor did defendant otherwiseestablish that his defense was impaired as a result of the subject delay. Accordingly, under thecircumstances presented, we find that defendant was not denied due process (see People vArchie, 116 AD3d at 1165; People v Hernandez, 42 AD3d at 662).
We likewise find unavailing defendant's related claim that, based on the record and evidencesubmitted on his CPL 440.10 motion, he was denied the effective assistance of counsel as a resultof counsel's failure to move for dismissal of the indictment on speedy trial grounds (see People v Caban, 5 NY3d 143,152 [2005]; People v Bond, 110AD3d 1366, 1367 [2013], lv denied 22 NY3d 1197 [2014]). Counsel's failure topursue a motion that had little or no chance of success is not a valid basis for finding that he wasineffective (see People v Caban, 5 NY3d at 152; People v Garrow, 147 AD3d 1160, 1162 [2017]). Further, a reviewof the record reveals that defendant's counsel conducted discovery, engaged in pretrial motionpractice, secured a beneficial plea offer and negotiated a minimum sentence for defendant.Accordingly, reviewing the proceedings as a whole, we find that defendant received meaningfulrepresentation (see People v Stultz,2 NY3d 277, 283 [2004]; People vRamey, 123 AD3d 1290, 1291 [2014], lv denied 25 NY3d 953 [2015]).
Egan Jr., Lynch, Rose and Mulvey, JJ., concur. Ordered that the judgment and order areaffirmed.