People v. Black
| Decision Date | 10 February 1998 |
| Parties | 1998 N.Y. Slip Op. 1358 The PEOPLE of the State of New York, Respondent, v. Tony BLACK, a/k/a Devron Delaney, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Jacqueline M. Vernon, for respondent.
Richard M. Greenberg, for defendant-appellant.
Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered February 10, 1994, convicting defendant, upon his plea of guilty, of robbery in the first degree, criminal possession of a weapon in the second degree, criminal possession of stolen property in the fifth degree and resisting arrest, and sentencing him, as a second felony offender, to concurrent prison terms of 7 1/4 to 14 1/2 years, 6 to 12 years, 1 year and 6 months, respectively, unanimously affirmed.
Defendant, who pleaded guilty, waived appellate review of his speedy trial claim (People v. O'Brien, 56 N.Y.2d 1009, 453 N.Y.S.2d 638, 439 N.E.2d 354). Defendant's claim that he was denied effective assistance of counsel because his attorney did not move to dismiss the indictment on speedy trial grounds is also unpreserved since defendant failed to move to withdraw the plea on these grounds (People v. Tong, 238 A.D.2d 607, 657 N.Y.S.2d 960; People v. Sierre, 173 A.D.2d 211, 570 N.Y.S.2d 930, lv. denied 78 N.Y.2d 974, 574 N.Y.S.2d 954, 580 N.E.2d 426). In any event, since defendant's claim of ineffective assistance was never explored in the context of a CPL 440.10 motion, it cannot be determined on the present record whether defense counsel decided against making a speedy trial motion for strategic purposes, such as to obtain, or avoid risking the loss of a favorable plea bargain (People v. Garcia, 235 A.D.2d 268, 652 N.Y.S.2d 520; see also, People v. Strempack, 71 N.Y.2d 1015, 530 N.Y.S.2d 100, 525 N.E.2d 746; People v. Gladstone, 239 A.D.2d 206, 658 N.Y.S.2d 7). The record fails to support defendant's claim that a speedy trial motion would have been so "patently meritorious" as to exclude any strategic explanation for failure to make such motion. On the present record, since defendant obtained a favorable plea bargain, "it cannot be concluded that defendant was denied effective assistance of counsel." (id.; see also, People v. Ford, 86 N.Y.2d 397, 405, 633 N.Y.S.2d 270, 657 N.E.2d 265).
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