People v. Ferguson

144 A.D.2d 579, 535 N.Y.S.2d 969, 1988 N.Y. App. Div. LEXIS 11929

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 1988
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Maraño, J.), rendered August 24, 1987, convicting him of criminal possession of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the case is remitted to the Supreme Court, Kings County, to hear and report on the defendant’s motion to withdraw his guilty plea insofar as it related to the alleged ineffective assistance of trial counsel based on the failure to raise a speedy trial claim, and the appeal is held in abeyance in the interim. The Supreme Court is to file its report with all convenient speed.

Based on our review of the record, we conclude that the Supreme Court erred in summarily denying that branch of the defendant’s motion to withdraw his guilty plea in which the defendant claimed ineffective assistance of trial counsel due to his counsel’s failure to pursue a speedy trial claim. The allegations contained in the defendant’s motion papers regarding the possibility of a speedy trial violation, which were not specifically controverted by the People, raise an issue as to whether the defendant received effective assistance of counsel when he entered his plea of guilty. Accordingly, the appeal is hereby held in abeyance and the case is remitted to the Supreme Court to hear and report on this issue. Mollen, P. J., Brown, Kunzeman and Weinstein, JJ., concur.