People v. Cooper

226 A.D.2d 1115, 642 N.Y.S.2d 131

Opinion

Judgment unanimously affirmed. Memorandum: Defendant’s 1988 judgment of conviction of criminal facilitation in the second degree was vacated because defense counsel was a part-time Assistant District Attorney for the Town of West Seneca, where unrelated misdemeanor charges were pending against defendant (People v Cooper, 156 Misc 2d 483). The indictments, however, were not dismissed (People v Cooper, supra, at 488). Thereafter, defendant entered a plea of guilty to two of the three indictments in satisfaction of all three indictments.

Defendant contends that a special prosecutor should have been appointed after the earlier conviction was vacated. “By pleading guilty * * * [defendant] * * * waived his right to appellate review of [that] nonjurisdictional claim” (People v Cole, 152 AD2d 851, 853, lv denied 74 NY2d 895; see, People v Sims, 217 AD2d 912, lv denied 87 NY2d 851). Contrary to the People’s contention, defendant did not expressly waive his double jeopardy defense (cf., People v Allen, 86 NY2d 599). Nevertheless, dismissal of the indictments on double jeopardy grounds is not required (see, People v Fida, 168 AD2d 905, lv denied 77 NY2d 960).

By pleading guilty, defendant forfeited his right to raise a statutory speedy trial claim (see, People v O’Brien, 56 NY2d 1009), but not his right to raise a constitutional speedy trial claim (see, People v Allen, supra, at 602). A balancing of the factors set forth in People v Taranovich (37 NY2d 442, 445) indicates that defendant’s constitutional right to a speedy trial was not violated. The People did not unduly delay their declaration of readiness after defendant’s earlier judgment of conviction was vacated, defendant was not incarcerated during that time, and there is no proof that the defense was impaired by reason of the delay. (Appeal from Judgment of Erie County Court, D’Amico, J.—Criminal Facilitation, 2nd Degree.) Present—Green, J. P., Lawton, Wesley, Doerr and Boehm, JJ.