People v Gardiner |
2018 NY Slip Op 01966 [159 AD3d 1233] |
March 22, 2018 |
Appellate Division, Third Department |
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
The People of the State of New York,
Respondent, v Lucas Gardiner, Appellant. |
Adam H. Van Buskirk, Chateaugay, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), for respondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered October 30, 2015, convicting defendant upon his plea of guilty of the crime of attempted burglary in the first degree.
In November 2014, defendant was arrested and charged by felony complaints with burglary in the first degree and criminal possession of a weapon in the third degree. In June 2015, he was charged by indictment with those same crimes and four additional crimes, and the People thereafter declared their readiness for trial. Defendant ultimately pleaded guilty to one count of attempted burglary in the first degree and waived his right to appeal. Pursuant to the plea agreement, defendant was sentenced, as a second violent felony offender, to seven years in prison, followed by five years of postrelease supervision. Defendant now appeals.
Defendant contends that the approximately 7
Defendant also maintains that his counsel's failure to raise the speedy trial issues before County Court constitutes ineffective assistance of counsel. To the extent that this claim impacts the voluntariness of defendant's guilty plea, it survives his appeal waiver (see People v Viele, 130 AD3d 1097, 1097 [2015]), but it is unpreserved for our review inasmuch as the record does not reflect that defendant made an appropriate postallocution motion (see People v Simpson, 146 AD3d 1175, 1176 [2017], lv denied 30 NY3d 983 [2017]; People v Archie, 116 AD3d 1165, 1165 [2014]; People v Slingerland, 101 AD3d 1265, 1267 [2012], lv denied 20 NY3d 1104 [2013]). In any event, given that the record is insufficient to assess whether defendant's speedy trial rights were violated, it is also insufficient to determine whether the failure of defense counsel to make a motion to dismiss on speedy trial grounds constitutes ineffective assistance of counsel. Accordingly, defendant's ineffective assistance of counsel claim is more properly the subject of a CPL article 440 motion (see People v Simpson, 146 AD3d at 1176; People v Viele, 130 AD3d at 1097; People v Slingerland, 101 AD3d at 1267; People v Hull, 52 AD3d 962, 963 [2008]).
Clark, Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment is affirmed.