PEOPLE v. McCLURE

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. John D. McCLURE, Appellant.

Decided: February 24, 1997

Before ROSENBLATT, J.P., and RITTER, COPERTINO and KRAUSMAN, JJ. Verna W. Cobb, Tuxedo, for appellant. Francis D. Phillips II, District Attorney, Goshen (Gerald D. D'Amelia, Jr., of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Orange County (Byrne, J.), rendered April 5, 1995, convicting him of rape in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

In the early morning hours of May 17, 1994, the defendant raped a local waitress in Wallkill, New York. In exchange for a promised sentence of not more than 5 to 15 years imprisonment, the defendant pleaded guilty to rape in the first degree.   The court sentenced him to 4 to 12 years imprisonment.   On appeal, the defendant complains that his counsel was ineffective, that the court should have held a hearing on his motion to dismiss the indictment based upon violation of his right to a speedy trial (see, CPL 30.30), and that his sentence was excessive.   The defendant's contentions are without merit.

 It is well established that where a defendant, on the advice of counsel, has entered a plea of guilty and reaped the benefits of a favorable plea bargain which substantially limits his exposure to imprisonment, he has received adequate representation (see, e.g., People v. Mobley, 221 A.D.2d 376, 633 N.Y.S.2d 203;  People v. Navedo, 137 A.D.2d 726, 524 N.Y.S.2d 810).   Here, had a jury convicted the defendant of rape in the first degree, he could have received a sentence of 8 1/3 to 25 years imprisonment, rather than the sentence of 4 to 12 years imprisonment actually imposed with the assistance of counsel.

 Moreover, violations of a defendant's statutory right to a speedy trial (CPL 30.30) are waived by a plea of guilty (see, e.g., People v. Grandberry, 223 A.D.2d 723, 637 N.Y.S.2d 203;  People v. Jones, 214 A.D.2d 623, 626 N.Y.S.2d 809).   In any event, there is no merit to the defendant's contention that he was deprived of his right to a speedy trial, or that the County Court should have held a hearing on the matter.   The defendant was arrested and arraigned on a felony complaint on May 17, 1994.   His arraignment on the indictment took place on July 7, 1994, less than two months later.   The People's statement of readiness, dated June 30, 1994, and received by defense counsel on July 2, 1994, was not “illusory” merely because it antedated the defendant's timely arraignment (cf., People v. England, 84 N.Y.2d 1, 613 N.Y.S.2d 854, 636 N.E.2d 1387;  see also, People v. Goss, 87 N.Y.2d 792, 642 N.Y.S.2d 607, 665 N.E.2d 177).

 The defendant's sentence was knowingly and freely bargained for (see, e.g., People v. Kazepis, 101 A.D.2d 816, 475 N.Y.S.2d 351;  see also, People v. Hagzan, 155 A.D.2d 616, 547 N.Y.S.2d 670;  People v. De Simone, 112 A.D.2d 443, 492 N.Y.S.2d 414), and was appropriate under the circumstances (see, People v. Reyes, 144 A.D.2d 394, 534 N.Y.S.2d 186;  People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

MEMORANDUM BY THE COURT.

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