People v. Robinson

49 A.D.3d 1269, 852 N.Y.2d 893

Opinion

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]). Contrary to the contention of defendant, his constitutional right to a speedy trial was not violated by the 16-month period between the date of his arrest and the entry of his plea (see generally People v Taranovich, 37 NY2d 442, 444-445 [1975]; People v Manuel, 39 AD3d 1185, 1186 [2007], lv denied 9 NY3d 878 [2007]). The 16-month period primarily was caused by County Court’s delay in issuing an order determining defendant’s omnibus motion and by court congestion (see People v Cartledge, 147 AD2d 917 [1989], lv denied 74 NY2d 662 [1989]), and we note in addition that defendant’s incarceration during that period of time was attributable in part to unrelated charges (see People v Jenkins, 2 AD3d 1390 [2003]).

Contrary to the further contention of defendant, he was not eligible to be sentenced pursuant to the 2004 Drug Law Reform Act ([DLRA] L 2004, ch 738) because he committed the instant offense on May 6, 2004, prior to the date on which the DLRA became effective (see People v Utsey, 7 NY3d 398, 403 [2006]; see also People v Moore, 38 AD3d 1313 [2007], lv denied 9 NY3d 848 [2007]). Defendant failed to preserve for our review his contention concerning his appearance in shackles before the grand jury (see People v Abron, 37 AD3d 1163 [2007], lv denied 8 NY3d 980 [2007]; see also People v Winfield, 267 AD2d 486 [1999], lv denied 94 NY2d 927, 95 NY2d 806 [2000]), as well as his contention concerning his alleged inability to confer with defense counsel during the grand jury proceeding (see People v Baker, 294 AD2d 888, 889 [2002], lv denied 98 NY2d 708 [2002]), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Present—Scudder, P.J., Martoche, Smith, Green and Gorski, JJ.