People v. Cooper
| Decision Date | 19 April 1996 |
| Docket Number | No. 1,1 |
| Parties | PEOPLE of the State of New York, Respondent, v. George COOPER, Appellant. (Appeal) |
| Court | New York Supreme Court — Appellate Division |
Appeal from Judgment of Erie County Court, D'Amico, J.--Criminal Facilitation, 2nd Degree.
Thomas Webb, Jr., Buffalo, for Appellant.
Kevin M. Dillon, by Steven Meyer, Buffalo, for Respondent.
Before GREEN, J.P., and LAWTON, WESLEY, DOERR and BOEHM, JJ.
Defendant's 1988 judgment of conviction of criminal facilitation in the second degree was vacated because defense counsel was a part-time Assistant District Attorney for the Town of West Seneca, where unrelated misdemeanor charges were pending against defendant (People v. Cooper, 156 Misc.2d 483, 593 N.Y.S.2d 733). The indictments, however, were not dismissed (People v. Cooper, supra, at 488, 593 N.Y.S.2d 733). Thereafter, defendant entered a plea of guilty to two of the three indictments in satisfaction of all three indictments.
Defendant contends that a special prosecutor should have been appointed after the earlier conviction was vacated. "By pleading guilty * * * [defendant] * * * waived his right to appellate review of [that] nonjurisdictional claim" (People v. Cole, 152 A.D.2d 851, 853, 544 N.Y.S.2d 228, lv. denied 74 N.Y.2d 895, 548 N.Y.S.2d 428, 547 N.E.2d 955; see, People v. Sims, 217 A.D.2d 912, 629 N.Y.S.2d 923 lv. denied 87 N.Y.2d 851, 638 N.Y.S.2d 609, 661 N.E.2d 1391). Contrary to the People's contention, defendant did not expressly waive his double jeopardy defense (cf., People v. Allen, 86 N.Y.2d 599, 635 N.Y.S.2d 139, 658 N.E.2d 1012). Nevertheless, dismissal of the indictments on double jeopardy grounds is not required (see, People v. Fida, 168 A.D.2d 905, 566 N.Y.S.2d 554, lv. denied 77 N.Y.2d 960, 570 N.Y.S.2d 494, 573 N.E.2d 582).
By pleading guilty, defendant forfeited his right to raise a statutory speedy trial claim (see, People v. O'Brien, 56 N.Y.2d 1009, 453 N.Y.S.2d 638, 439 N.E.2d 354), but not his right to raise a constitutional speedy trial claim (see, People v. Allen, supra, at 602, 635 N.Y.S.2d 139, 658 N.E.2d 1012). A balancing of the factors set forth in People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303, indicates that defendant's constitutional right to a speedy trial was not violated. The People did not unduly delay their declaration of readiness after defendant's earlier judgment of conviction was vacated, defendant was...
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