People v. Alvarez

188 A.D.2d 694, 591 N.Y.S.2d 810, 1992 N.Y. App. Div. LEXIS 13525

Opinion

Appeal from a judgment of the County Court of Greene County (Battisti, Jr., J.), rendered September 24, 1991, convicting defendant upon his plea of guilty of the crime of assault in the second degree.

Defendant’s guilty plea forfeited his claim for dismissal of the indictment pursuant to CPL 30.30 (see, People v Howe, 56 NY2d 622). While defendant argues that his reservation of his right to appeal his conviction encompassed the CPL 30.30 claim, defendant’s motion pursuant to CPL 30.30 was made after his guilty plea, and was therefore untimely in any event (see, CPL 210.20 [2]; People v Spears, 106 AD2d 417). Furthermore, any attempt by defendant to reserve that claim would have been ineffectual (see, People v O’Brien, 56 NY2d 1009; People v Howe, supra; People v King, 152 AD2d 815).

Defendant’s failure to timely move pursuant to CPL 30.30 also defeats his argument that his inability to preserve such a claim renders his plea involuntary. Finally, defendant’s allegations that trial counsel failed to provide meaningful representation cannot be resolved on this record and defendant’s remedy, if any, is a motion pursuant to CPL 440.10 (see, People v Pena, 178 AD2d 192, lv denied 79 NY2d 1005).

Mikoll, J. P., Yesawich Jr., Levine, Mahoney and Harvey, JJ., concur. Ordered that the judgment is affirmed.