People v. Paduano

84 A.D.3d 1730, 922 N.Y.S.2d 726

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 2011
• Status: Published

Opinion

Appeal from a judgment of the Niagara County Court (Sara S. Sperrazza, J.), rendered August 11, 2009. The judgment convicted defendant, upon his plea of guilty, of grand larceny in the third degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: On appeal from a judgment convicting him upon his plea of guilty of grand larceny in the third degree (Penal Law § 155.35), defendant contends that he was denied his right to a speedy trial pursuant to CPL 30.30. By pleading guilty, however, defendant forfeited that contention (see People v O’Brien, 56 NY2d 1009, 1010 [1982]; People v Suarez, 55 NY2d 940, 942 [1982]). In any event, defendant’s contention does not survive his valid waiver of the right to appeal (see People v Barnes, 41 AD3d 1309 [2007], lv denied 9 NY3d 920 [2007]; People v Tracey, 13 AD3d 1174 [2004], lv denied 4 NY3d 836 [2005]). Defendant mistakenly relies on People v Seaberg (74 NY2d 1, 9 [1989]) in support of his contention that his statutory right to a speedy trial cannot be waived inasmuch as Seaberg concerned the constitutional right to a speedy trial (see generally People v Weeks, 272 AD2d 983 [2000], lv denied 95 NY2d 872 [2000]). Even assuming, arguendo, that defendant’s contention included a constitutional speedy trial claim, we conclude that such a claim may be voluntarily surrendered or abandoned (see People v Rodriguez, 50 NY2d 553, 557 [1980]; People v Denis, 276 AD2d 237, 247 [2000], lv denied 96 NY2d 782, 861 [2001]), and the record demonstrates that defendant withdrew his speedy trial motion before pleading guilty.

Defendant’s further contention that he was denied effective assistance of counsel does not survive the plea or his valid waiver of the right to appeal “because defendant failed to demonstrate that ‘the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [defense counsel’s] allegedly poor performance’ ” (People v Wright, 66 AD3d 1334 [2009], lv denied 13 NY3d 912 [2009]). In any event, to the extent that defendant contends that defense counsel was ineffective for withdrawing his speedy trial motion, we note that the reasons for withdrawal are not disclosed in the record, and thus defendant’s contention involves matters outside the record on appeal and must be raised by way of a motion pursuant to CPL 440.40 (see generally People v Cobb, 72 AD3d 1565, 1567 [2010], lv denied 15 NY3d 803 [2010]; People v Griffin, 48 AD3d 1233, 1236 [2008], lv denied 10 NY3d 840 [2008]). Present — Centra, J.P, Fahey, Lindley, Gorski and Martoche, JJ.