| People v Fay |
| 2017 NY Slip Op 07487 [154 AD3d 1178] |
| October 26, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Jason P.Fay, Appellant. |
Linda B. Johnson, East Greenbush, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (David M. Petrush of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered October 6, 2014, convicting defendant upon his plea of guilty of the crime of burglaryin the second degree.
In September 2011, defendant was indicted on 17 counts of burglary in the second degreebased upon numerous home burglaries that occurred between March 2010 and June 2010 inBroome County. At the time he was charged with those burglaries, defendant was in custody inPennsylvania for charges in that state and remained there until Broome County obtained custodyof him; he was arraigned on June 18, 2013 on the Broome County charges. The Peopleannounced readiness for trial the next day. On September 9, 2013, defendant filed an omnibusmotion seeking, among other things, dismissal of the indictment and suppression of statementshe had made.
Pursuant to a federal order, defendant was thereafter transferred to federal custody to be awitness on a federal case. He was returned to Broome County in November 2013. In July 2014,County Court partially granted defendant's motion by dismissing count 5 of the indictment and,with respect to the remaining issues, the court scheduled a hearing for September 4, 2014. Priorto the hearing, defendant moved to dismiss the indictment, alleging that the People had violatedthe Interstate Agreement on Detainers (hereinafter IAD) by failing to bring him to trial within120 days from his initial arrival in Broome County (see 18 USC Appendix 2,§ 2, art IV[*2][c]; CPL 580.20, art IV [c]) andviolated the antishuttling provision by returning him to Pennsylvania without first bringing himto trial on the instant charges (see 18 USC Appendix 2, § 2, art IV [e]; CPL580.20, art IV [e]). At the previously scheduled hearing, County Court heard oral arguments onthe alleged IAD violation and denied defendant's motion on those grounds.
On September 11, 2014, before County Court reached a decision on the outstanding issues,defendant pleaded guilty to a single count of burglary in the second degree (count 13) inexchange for being sentenced as a second felony offender to a prison term of six years followedby five years of postrelease supervision, to run consecutively to the term he was serving inPennsylvania. Defendant was ultimately sentenced in accordance with his plea and nowappeals.
Defendant argues that County Court erred in denying his motion to dismiss the indictmentdue to a violation of the antishuttling provision of the IAD. While certain limited issues survive aguilty plea, those issues "relate either to jurisdictional matters (such as an insufficient accusatoryinstrument) or to rights of a constitutional dimension that go to the very heart of the process(such as the constitutional speedy trial right, the protection against double jeopardy or adefendant's competency to stand trial)" (People v Hansen, 95 NY2d 227, 230 [2000];see e.g. Menna v New York, 423 US 61, 62 [1975]; People v Guerrero, 28 NY3d 110, 116-117 [2016]; People vLee, 58 NY2d 491, 494 [1983]). Here, the statutory rights available to defendant under theIAD are not such "defect[s] implicating the integrity of the process" but, rather, are lessfundamental and, thus, are not deemed to survive a guilty plea (People v Hansen, 95NY2d at 231; see e.g. People v Taylor, 65 NY2d 1, 6 [1985]; People v Friscia, 51NY2d 845, 847 [1980]; cf. People vPizetzky, 46 AD3d 709 [2007], lv denied 10 NY3d 815 [2008]).
Defendant also argues that both his speedy trial right under the IAD and his constitutionalspeedy trial right were violated. We need not address defendant's statutory claim as defendantforfeited this claim by virtue of his guilty plea (see People v Pizetzky, 46 AD3d at 710;cf. People v Friscia, 51 NY2d at 847; People v Mercer, 105 AD3d 1091, 1092 [2013], lv denied21 NY3d 1017 [2013]). Further, although defendant's argument that his constitutional speedytrial rights were violated was not forfeited by his guilty plea, the issue is unpreserved for thisCourt's review because defendant failed to raise it before County Court (see People v Bennett, 143 AD3d1008, 1010 [2016]; People v Mercer, 105 AD3d at 1093; see also People vLawrence, 64 NY2d 200, 203-204 [1984]). Were this issue properly before us, we wouldfind it to be without merit given that the delay was reasonable and there was no apparentprejudice to defendant. Moreover, even though defendant was incarcerated during the entireduration of the action, defendant's freedom was not impaired solely due to this criminal action ashe was serving a sentence on a separate crime committed in Pennsylvania (see People v Romeo, 12 NY3d 51,55 [2009], cert denied 558 US 817 [2009]; People v Tuper, 118 AD3d 1144, 1146 [2014], lv denied 25NY3d 954 [2015]; People v Pope,96 AD3d 1231, 1233 [2012], lv denied 20 NY3d 1064 [2013]).
Defendant's claim that his plea was not knowing, intelligent and voluntary is unpreserved byhis failure to make a postallocution motion (see People v Rich, 140 AD3d 1407, 1407 [2016], lv denied28 NY3d 936 [2016]; People v Hull,52 AD3d 962, 963 [2008]). Further, the narrow exception to the preservation rule isinapplicable as defendant did not make any statements during the plea allocution that wereinconsistent with his guilt or the voluntariness of his plea (see People v Tetreault, 152 AD3d 1081, 1082 [2017]; People v DeAngelo, 136 AD3d1119, 1120 [2016]).
To the extent that defendant argues that his counsel was ineffective due to his failure to file aCPL 30.30 motion to dismiss, the issue is not preserved for our review as defendant failed toraise this issue before County Court (seePeople v Toledo, 144 AD3d 1332, 1334 n 2 [2016], lv denied 29 NY3d 1001[2017]). In any event, were this speedy trial claim properly before us, we would find it to bewithout merit. A speedy trial claim under the IAD involves the same [*3]considerations of time involved under CPL 30.30 (see CPL30.30 [4]; 580.20, art VI [a]). In fact, under the IAD, defendant only had to prove that thereexisted a 120-day delay (see CPL 580.20, art IV [c]), but, under CPL 30.30, he wouldhave had to prove that there existed a 180-day delay (see CPL 30.30 [1] [a]). As such,counsel's choice to bring a motion under the IAD, as opposed to a CPL 30.30 motion, was astrategic one (see generally People vBriskin, 125 AD3d 1113, 1122 [2015], lv denied 25 NY3d 1069 [2015]).Finally, to the extent that defendant's ineffective assistance of counsel claim implicates thevoluntariness of his plea, such claim is not before us given that defendant failed to make anappropriate postallocution motion (see People v Toledo, 144 AD3d at 1333).
McCarthy, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.