People v Shufelt

2018 NY Slip Op 03775 [161 AD3d 1451]

May 24, 2018

Appellate Division, Third Department

As corrected through Wednesday, June 27, 2018

[*1]

The People of the State of New York,Respondent, v Ryan P. Shufelt, Appellant.

Martin J. McGuinness, Saratoga Springs, for appellant.

Craig P. Carriero, District Attorney, Malone (Jennifer M. Hollis of counsel), forrespondent.

Mulvey, J. Appeal from a judgment of the County Court of Franklin County (Main Jr., J.),rendered March 23, 2016, convicting defendant upon his plea of guilty of the crime of attemptedpromoting prison contraband in the first degree.

In December 2015, defendant was charged by indictment with two counts of promotingprison contraband in the first degree. The charges stemmed from an incident that occurred inOctober 2014 while defendant was incarcerated at a state correctional facility, at which time twosharpened pieces of metal—each measuring approximately 10 inches inlength—were found inside of defendant's boots. When defendant appeared for arraignmentin February 2016, he was afforded the opportunity to plead guilty to the reduced charge of onecount of attempted promoting prison contraband in the first degree with the understanding that hewould be sentenced as a second felony offender to a prison term of 11/2 to 3 years.The plea agreement included a waiver of defendant's right to appeal, which did not encompass"constitutional issues" or any violation of the stated sentencing commitment. Defendant, who hadbeen released to parole supervision, thereafter pleaded guilty in accordance with the terms of theplea agreement and was sentenced to the contemplated term of imprisonment. Defendant nowappeals.

Although defendant's claim that he was denied his constitutional right to a speedy trial"survives both his guilty plea and his waiver of the right to appeal," this argument is unpreservedfor our review given defendant's failure to raise this issue before County Court in the first [*2]instance (People v Gerald, 153 AD3d 1029, 1030 [2017]; see People v Gardiner, 159 AD3d1233, 1234 [2018]; People vEvans, 156 AD3d 1246, 1247 [2017]). Defendant's related assertion—that he wasdenied the effective assistance of counsel due to counsel's failure to move to dismiss theindictment based upon preindictment delay—is equally unpreserved for our review absentevidence of an appropriate postallocution motion (see People v Gardiner, 159 AD3d at1234; People v Archie, 116 AD3d1165, 1165 [2014]). Upon our review of the record, we find that the narrow exception to thepreservation requirement was not triggered (see People v Evans, 156 AD3d at 1247; People v Franklin, 146 AD3d1082, 1084 [2017], lv denied 29 NY3d 948 [2017]). Accordingly, the judgment ofconviction is affirmed.

Lynch, J.P., Devine, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.