People v Gardiner

2018 NY Slip Op 01966 [159 AD3d 1233]

March 22, 2018

Appellate Division, Third Department

As corrected through Wednesday, May 2, 2018

[*1]

The People of the State of New York,Respondent, v Lucas Gardiner, Appellant.

Adam H. Van Buskirk, Chateaugay, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), forrespondent.

Egan Jr., J.P. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered October 30, 2015, convicting defendant upon his plea of guilty of thecrime of attempted burglary in the first degree.

In November 2014, defendant was arrested and charged by felony complaints with burglaryin the first degree and criminal possession of a weapon in the third degree. In June 2015, he wascharged by indictment with those same crimes and four additional crimes, and the Peoplethereafter declared their readiness for trial. Defendant ultimately pleaded guilty to one count ofattempted burglary in the first degree and waived his right to appeal. Pursuant to the pleaagreement, defendant was sentenced, as a second violent felony offender, to seven years inprison, followed by five years of postrelease supervision. Defendant now appeals.

Defendant contends that the approximately 71/2-month delay between the timethe felony complaints were filed and the People declared their readiness for trial violated hisstatutory and constitutional rights to a speedy trial. As to his statutory speedy trial claim, thisclaim was forfeited by defendant's guilty plea and is also foreclosed by his unchallenged appealwaiver (see People v Toledo, 144AD3d 1332, 1334 n 2 [2016], lv denied 29 NY3d 1001 [2017]; People v Wright, 119 AD3d 972,973 n 1 [2014]; People v Devino,110 AD3d 1146, 1147 [2013]). Moreover, it is unpreserved for our review given defendant'sfailure to raise it before County Court (see People v Cooper, 134 AD3d 1583, 1585-1586 [2015];People v Devino, 110 AD3d at [*2]1147). Althoughdefendant's constitutional speedy trial claim survives his guilty plea and appeal waiver (see People v Lanfranco, 124 AD3d1144, 1145 [2015], lv denied 25 NY3d 1203 [2015]; People v Irvis, 90 AD3d 1302,1303 [2011], lv denied 19 NY3d 962 [2012]; People v McCorkle, 67 AD3d 1249, 1250 [2009]), it is equallyunpreserved for our review (see Peoplev Fay, 154 AD3d 1178, 1180 [2017], lv denied 30 NY3d 1115 [2018]; People v Grumberg, 153 AD3d1525, 1527 [2017]; People vGerald, 153 AD3d 1029, 1030 [2017]). In any event, in light of the absence of a motionbefore County Court, we find that "the record has not been sufficiently developed to permitadequate review of this issue" (People v Grumberg, 153 AD3d at 1527).

Defendant also maintains that his counsel's failure to raise the speedy trial issues beforeCounty Court constitutes ineffective assistance of counsel. To the extent that this claim impactsthe voluntariness of defendant's guilty plea, it survives his appeal waiver (see People v Viele, 130 AD3d1097, 1097 [2015]), but it is unpreserved for our review inasmuch as the record does notreflect that defendant made an appropriate postallocution motion (see People v Simpson, 146 AD3d1175, 1176 [2017], lv denied 30 NY3d 983 [2017]; People v Archie, 116 AD3d 1165,1165 [2014]; People v Slingerland,101 AD3d 1265, 1267 [2012], lv denied 20 NY3d 1104 [2013]). In any event, giventhat the record is insufficient to assess whether defendant's speedy trial rights were violated, it isalso insufficient to determine whether the failure of defense counsel to make a motion to dismisson speedy trial grounds constitutes ineffective assistance of counsel. Accordingly, defendant'sineffective assistance of counsel claim is more properly the subject of a CPL article 440 motion(see People v Simpson, 146 AD3d at 1176; People v Viele, 130 AD3d at 1097;People v Slingerland, 101 AD3d at 1267; People v Hull, 52 AD3d 962, 963 [2008]).

Clark, Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment is affirmed.