WALTER, WILLIAM I., PEOPLE v ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
357
KA 15-00649
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, CURRAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
WILLIAM I. WALTER, DEFENDANT-APPELLANT.
KARPINSKI, STAPLETON & TEHAN, P.C., AUBURN (ADAM H. VANBUSKIRK OF
COUNSEL), FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (BRIAN T. LEEDS OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered February 5, 2015. The judgment convicted
defendant, upon his plea of guilty, of attempted burglary in the third
degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted burglary in the third degree
(Penal Law §§ 110.00, 140.20). Insofar as defendant contends that he
was denied his right to a speedy trial pursuant to CPL 30.30, we note
that, “ ‘[w]hen defendant entered a plea of guilty[,] he forfeited his
right to claim that he was deprived of a speedy trial under’ ” that
statute (People v Schillawski, 124 AD3d 1372, 1372-1373, lv denied 25
NY3d 1207, quoting People v O’Brien, 56 NY2d 1009, 1010; see People v
Paduano, 84 AD3d 1730, 1730).
Furthermore, “[a]lthough defendant’s contention that he was
deprived of his constitutional right to a speedy trial survives his
plea of guilty” (Schillawski, 124 AD3d at 1373), we also note that, in
his pro se motion, “ ‘defendant moved to dismiss the indictment on
statutory speedy trial grounds only and thus failed to preserve for
our review his present contention that he was denied his
constitutional right to a speedy trial’ ” (id.; see People v Weeks,
272 AD2d 983, 983, lv denied 95 NY2d 872). In any event, defendant’s
contention is without merit. Upon our review of the record in light
of the relevant factors (see People v Taranovich, 37 NY2d 442, 445),
we conclude that those factors would have compelled denial of a motion
based on defendant’s constitutional right to a speedy trial, and we
note in particular that “ ‘there [was] a complete lack of any evidence
that the defense was impaired by reason of the delay’ ” (Schillawski,
-2- 357
KA 15-00649
124 AD3d at 1373; see People v Benjamin, 296 AD2d 666, 667).
Finally, defendant contends that he was denied effective
assistance of counsel as a result of defense counsel’s failure to make
a motion to dismiss the indictment based on the denial of his
statutory right to a speedy trial (see CPL 30.30 [1] [a]).
Defendant’s contention is “foreclosed by his plea of guilty because he
failed to allege that the plea bargaining process was infected by
[the] allegedly ineffective assistance or that [he] entered the plea
because of his attorney’s allegedly poor performance” (People v
Nieves-Rojas, 126 AD3d 1373, 1373 [internal quotation marks omitted];
see People v Wright, 66 AD3d 1334, 1334, lv denied 13 NY3d 912; see
also People v Gleen, 73 AD3d 1443, 1444, lv denied 15 NY3d 773). In
any event, we note that the record on appeal is inadequate to enable
us to determine whether such a motion would have been successful and
whether defense counsel was ineffective for failing to make that
motion and thus, defendant’s contention must be raised by way of a
motion pursuant to CPL article 440 (see People v Youngs, 101 AD3d
1589, 1589, lv denied 20 NY3d 1105; Paduano, 84 AD3d at 1731).
Entered: April 29, 2016 Frances E. Cafarell
Clerk of the Court