PEOPLE v. GARDINER (2018)

MEMORANDUM AND ORDER

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 the crime of attempted burglary in the first degree.

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

Defendant contends that the approximately 71/212–month delay between the time the felony complaints were filed and the People declared their readiness for trial violated his statutory and constitutional rights to a speedy trial.  As to his statutory speedy trial claim, this claim was forfeited by defendant's guilty plea and is also foreclosed by his unchallenged appeal waiver (see People v. Toledo, 144 A.D.3d 1332, 1334 n. 2, 40 N.Y.S.3d 680 [2016], lv denied 29 N.Y.3d 1001, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017];  People v. Wright, 119 A.D.3d 972, 973 n. 1, 989 N.Y.S.2d 180 [2014];  People v. Devino, 110 A.D.3d 1146, 1147, 973 N.Y.S.2d 372 [2013] ).  Moreover, it is unpreserved for our review given defendant's failure to raise it before County Court (see People v. Cooper, 134 A.D.3d 1583, 1585–1586, 22 N.Y.S.3d 751 [2015];  People v. Devino, 110 A.D.3d at 1147, 973 N.Y.S.2d 372).  Although defendant's constitutional speedy trial claim survives his guilty plea and appeal waiver (see People v. Lanfranco, 124 A.D.3d 1144, 1145, 1 N.Y.S.3d 576 [2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015];  People v. Irvis, 90 A.D.3d 1302, 1303, 935 N.Y.S.2d 371 [2011], lv denied 19 N.Y.3d 962, 950 N.Y.S.2d 114, 973 N.E.2d 212 [2012];  People v. McCorkle, 67 A.D.3d 1249, 1250, 890 N.Y.S.2d 665 [2009] ), it is equally unpreserved for our review (see People v. Fay, 154 A.D.3d 1178, 1180, 63 N.Y.S.3d 575 [2017], lv denied 30 N.Y.3d 1115, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2018 WL 1282769 [Feb. 15, 2018];  People v. Grumberg, 153 A.D.3d 1525, 1527, 62 N.Y.S.3d 199 [2017];  People v. Gerald, 153 A.D.3d 1029, 1030, 61 N.Y.S.3d 173 [2017] ).  In any event, in light of the absence of a motion before County Court, we find that “the record has not been sufficiently developed to permit adequate review of this issue” (People v. Grumberg, 153 A.D.3d at 1527, 62 N.Y.S.3d 199).

Defendant also maintains that his counsel's failure to raise the speedy trial issues before County Court constitutes ineffective assistance of counsel.  To the extent that this claim impacts the voluntariness of defendant's guilty plea, it survives his appeal waiver (see People v. Viele, 130 A.D.3d 1097, 1097, 10 N.Y.S.3d 912 [2015] ), but it is unpreserved for our review inasmuch as the record does not reflect that defendant made an appropriate postallocution motion (see People v. Simpson, 146 A.D.3d 1175, 1176, 47 N.Y.S.3d 477 [2017], lvs denied 30 N.Y.3d 980, 983, 67 N.Y.S.3d 582, 585, 89 N.E.3d 1262, 1265 [2017];  People v. Archie, 116 A.D.3d 1165, 1165, 983 N.Y.S.2d 358 [2014];  People v. Slingerland, 101 A.D.3d 1265, 1267, 955 N.Y.S.2d 690 [2012], lv denied 20 N.Y.3d 1104, 965 N.Y.S.2d 800, 988 N.E.2d 538 [2013] ).  In any event, given that the record is insufficient to assess whether defendant's speedy trial rights were violated, it is also insufficient to determine whether the failure of defense counsel to make a motion to dismiss on speedy trial grounds constitutes ineffective assistance of counsel.  Accordingly, defendant's ineffective assistance of counsel claim is more properly the subject of a CPL article 440 motion (see People v. Simpson, 146 A.D.3d at 1176, 47 N.Y.S.3d 477;  People v. Viele, 130 A.D.3d at 1097, 10 N.Y.S.3d 912;  People v. Slingerland, 101 A.D.3d at 1267, 955 N.Y.S.2d 690;  People v. Hull, 52 A.D.3d 962, 963, 859 N.Y.S.2d 508 [2008] ).

ORDERED that the judgment is affirmed.

Egan Jr., J.P.

Clark, Mulvey, Aarons and Rumsey, JJ., concur.