People v Heverly

2018 NY Slip Op 06594 [165 AD3d 1320]

October 4, 2018

Appellate Division, Third Department

As corrected through Wednesday, November 28, 2018

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The People of the State of New York,Respondent, v Joseph P. Heverly, Appellant.

Salvatore Adamo, Albany, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Jordan Yorke of counsel), forrespondent.

Garry, P.J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered May 23, 2016, convicting defendant upon his plea of guilty of the crime of grandlarceny in the fourth degree.

Defendant pleaded guilty to an indictment charging him with grand larceny in the fourthdegree and was sentenced as a second felony offender, in accordance with the terms of the pleaagreement, to a prison term of 11/2 to 3 years. Defendant appeals.

We affirm. Defendant contends that the plea was not knowing, voluntary and intelligent andthat he did not receive the effective assistance of counsel because the indictment should havebeen dismissed on statutory speedy trial grounds. These claims are unpreserved for our review asthe record does not reflect that defendant made an appropriate postallocution motion (see People v Lamb, 162 AD3d1395, 1396 [2018]). Were we to consider defendant's contentions, we would find them to bewithout merit. The record reflects that counsel submitted a motion to dismiss on statutory speedytrial grounds, but defendant ultimately made the decision to withdraw the motion and accept theplea agreement prior to the motion being decided. "When defendant entered a plea of guilty heforfeited his right to claim that he was deprived of a speedy trial under CPL 30.30" (People vO'Brien, 56 NY2d 1009, 1010 [1982]; see People v Ellison, 160 AD3d 1113, 1113 [2018]; People v Brandon, 133 AD3d 901,902 [2015], lv denied 27 NY3d 992 [2016]; People v Stevenson, 119 AD3d 1156, 1157 [2014]). To the extentthat defendant challenges the severity of the sentence imposed, we note that the agreed-uponsentence was the statutory minimum for a second felony offender (see Penal Law§ 70.06 [3] [e]; [4] [b]) and cannot be considered harsh or excessive (see People v Duggins, 161 AD3d1445, 1447 [2018], lv denied 32 NY3d 937 [2018]).

McCarthy, Lynch, Aarons and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.