People v. Diaz

70 A.D.2d 600, 416 N.Y.S.2d 82, 1979 N.Y. App. Div. LEXIS 12017

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1979
• Status: Published

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered October 8, 1976, convicting him of criminal possession of a controlled substance in the sixth degree, upon his plea of guilty, and imposing sentence. Judgment reversed, on the law, and case remitted to Criminal Term for further proceedings consistent herewith. Prior to the imposition of sentence, defendant pressed for a determination of his motion to dismiss for failure to provide a speedy trial. This motion, which was made on papers, became lost in the confusion when a suppression hearing was terminated after the prosecution moved to dismiss a higher count of the indictment subject to a plea being accepted. Criminal Term proceeded to take the plea on the erroneous assumption that a waiver of the speedy trial challenge would be encompassed in the plea bargain, which also included a waiver of a determination of the suppression motion. Prior to sentence, when defendant sought a determination of the speedy trial motion, Criminal Term held a hearing directed to the issues of waiver with respect to the speedy trial challenge and coercion with respect to the plea and, erroneously finding that the determination of the speedy trial motion had been waived when the plea was negotiated, declined to determine the motion to dismiss. Our review of this record persuades us that the speedy trial challenge improperly became an item of barter in the plea negotiation and a vacatur of the plea is thus required (see People v Franciotti, 55 AD2d 655). Hopkins, J. P., Titone, Margett and Mangano, JJ., concur.