People v. Willey

118 A.D.3d 1190, 987 N.Y.S.2d 265

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 2014
• Status: Published

Opinion

Garry, J.

Appeal from a judgment of the County Court of Otsego County (Lambert, J.), rendered April 2, 2012, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree (two counts).

In 2011, defendant was charged in an indictment with assault in the second degree after allegedly causing physical injury to another inmate while confined in the Otsego County Correctional Facility. In 2012, he was charged in a superior court information with additional counts of assault in the second degree and attempted assault in the second degree, arising from a separate altercation with a correction officer. Defendant waived indictment on the superior court information and, in full satisfaction all charges, pleaded guilty to two counts of attempted assault in the second degree, also waiving his right to appeal. In accord with the plea agreement, and as a second felony offender, he was sentenced to an aggregate prison term of IV2 to 3 years.

Defendant appeals, arguing solely that County Court erred in denying his pretrial motion to dismiss the indictment on the ground that he was deprived of a speedy trial under CPL 30.30, without conducting a hearing. Upon this record, however, and absent a challenge to the voluntariness of his guilty plea or his waiver of the right to appeal, defendant’s statutory claim is precluded (see People v O’Brien, 56 NY2d 1009, 1010 [1982]; People v Devino, 110 AD3d 1146, 1147 [2013]; People v Spence, 101 AD3d 1477, 1478 [2012]).

* Accordingly, the judgment must be affirmed.

Peters, PJ., Stein, Egan Jr. and Clark, JJ., concur.

Ordered that the judgment is affirmed.

To the extent that defendant had previously asserted a constitutional claim, this would survive his guilty plea and appeal waiver; nonetheless, any such claim is deemed abandoned by his failure to raise it in his brief upon appeal (see People v Alexander, 19 NY3d 203, 215 n 8 [2012]; People v Irvis, 90 AD3d 1302, 1303 [2011], lv denied 19 NY3d 962 [2012]; People v McCorkle, 67 AD3d 1249, 1250 and n [2009]).