People v. Bennett

• Decision Date: 06 October 2016
• Citation: 2016 N.Y. Slip Op. 06517,38 N.Y.S.3d 290,143 A.D.3d 1008
• Parties: The PEOPLE of the State of New York, Respondent, v. Karriem BENNETT, Appellant.
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 1008

38 N.Y.S.3d 290

2016 N.Y. Slip Op. 06517

The PEOPLE of the State of New York, Respondent,

v.Karriem BENNETT, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 6, 2016.

Michelle E. Stone, Vestal, for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen D. Ferri of counsel), for respondent.

Before: McCARTHY, J.P., LYNCH, ROSE, DEVINE and MULVEY, JJ.

LYNCH, J.

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered May 24, 2013, convicting defendant upon his guilty plea of the crime of attempted assault in the second degree (two counts).

On August 16, 2012, defendant waived indictment and pleaded guilty to the reduced charge of attempted assault in the second degree in satisfaction of a superior court information, admitting that he had intentionally slashed the victim's face with a knife. The plea was pursuant to a plea agreement providing for five years of probation. While awaiting sentencing, defendant was arrested and later charged in an indictment with another assault in the second degree stemming from his actions in cutting a second victim with a knife. County Court advised defendant that this arrest violated the conditions of his release and that it intended to impose an enhanced sentence on the first attempted assault. Pursuant to a combined negotiated disposition, defendant pleaded guilty under the indictment to the reduced charge of attempted assault in the second degree. County Court, as promised, imposed an enhanced prison sentence of 1 to 3 years on the first attempted assault conviction, to be served concurrently with the agreed-upon sentence of 1 to 3 years for the second attempted assault conviction, and ordered that defendant pay restitution. Defendant now appeals.

We affirm. Initially, defendant's challenge to the enhanced sentence imposed on his plea to the first attempted assault charge is not preserved for our review, as he failed to raise any objection to the enhanced sentence or to make an appropriate motion to withdraw his plea (see People v. Tole, 119 A.D.3d 982, 983, 989 N.Y.S.2d 185 [2014] ). Moreover, defendant does not dispute that County Court had warned him at the time of that plea, and he agreed, that if he were arrested while awaiting sentencing on that plea, the court would not be bound to the agreed-upon probationary sentence and advised him that he could face up to 1 ? to 4 years in prison (see People v. Valencia, 3 N.Y.3d 714, 715, 786 N.Y.S.2d 374, 819 N.E.2d 990 [2004] ; People v. Parker, 57 N.Y.2d 136, 141, 454 N.Y.S.2d 967, 440 N.E.2d 1313 [1982] ; People v. Miller, 117 A.D.3d 1237, 1238, 986 N.Y.S.2d 255 [2014], lv. denied 24 N.Y.3d 1086, 1 N.Y.S.3d 13, 25 N.E.3d 350 [2014] ; compare People v. Rushlow, 137 A.D.3d 1482, 1483–1484, 28 N.Y.S.3d 476 [2016] ). Further, defendant did not contest that his arrest violated that condition of his first plea, and he thereafter entered a guilty plea to the second attempted assault charge pursuant to an agreement setting forth the promised sentences to be imposed for both attempted assaults. Thus, we perceive no basis upon which to take corrective action in the interest of justice. With regard to defendant's contention that the agreed-upon sentence was harsh and excessive, his release from prison after serving his sentence rendered this claim moot (see People v. Cancer, 132 A.D.3d 1021, 1022, 17 N.Y.S.3d 786 [2015] ; People v. Rodwell, 122 A.D.3d 1065, 1068, 996 N.Y.S.2d 398 [2014], lv. denied 25 N.Y.3d 1170, 15 N.Y.S.3d 302, 36 N.E.3d 105 [2015] ).

Next, defendant claims that the six-month, four-day delay between the commencement of the first criminal action on February 12, 2012, when he was arraigned on the felony complaint charging the first assault, and his August 6, 2012 guilty plea to that attempted assault deprived him of his constitutional right to a speedy trial (see CPL 1.20[17] ; 30.20). While this claim survives defendant's guilty plea, it is unpreserved for our review as he failed to raise it in a pretrial motion (see People v. Lawrence, 64 N.Y.2d 200, 203, 485 N.Y.S.2d 233, 474 N.E.2d 593 [1984] ; People v. Archie, 116 A.D.3d 1165, 1165, 983 N.Y.S.2d 358 [2014] ; People v. Martin, 81 A.D.3d 1178, 1179, 917 N.Y.S.2d 415 [2011], lv. denied 17 N.Y.3d 819, 929 N.Y.S.2d 807, 954 N.E.2d 98 [2011] ; see also CPL 170.30[1][e] ; [2] ). Were this issue properly before us, we would find it to be without merit given the limited delay, lack of any apparent prejudice to defendant and the fact that he was not incarcerated during this time (see People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975] ; People v. Pope, 96 A.D.3d 1231, 1233–1234, 947 N.Y.S.2d 634 [2012], lv. denied 20 N.Y.3d 1064, 962 N.Y.S.2d 615, 985 N.E.2d 925 [2013] ).

Finally, defendant contends that he was deprived of the effective assistance of counsel, focusing on counsel's claimed failure to seek dismissal at a preliminary hearing of the felony complaint charging the second assault (see CPL 180.10 ). This claim is unpreserved for our review, as defendant did not raise it before County Court, and the record does not support the conclusion that he had a colorable claim to dismiss that felony complaint (see People v. Soprano, 135 A.D.3d 1243,...