People v. Franco

• Decision Date: 13 March 2013
• Citation: 2013 N.Y. Slip Op. 01570,104 A.D.3d 790,960 N.Y.S.2d 507
• Parties: The PEOPLE, etc., respondent, v. Jairo FRANCO, appellant.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 790

960 N.Y.S.2d 507

2013 N.Y. Slip Op. 01570

The PEOPLE, etc., respondent,

v.Jairo FRANCO, appellant.

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

March 13, 2013.

Jairo Franco, Goshen, N.Y., appellant pro se.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall of counsel; Robert Ho on the brief), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and SYLVIA HINDS–RADIX, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered October 22, 2009, convicting him of rape in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

Although a claim that a plea of guilty was not voluntary survives a valid waiver of the right to appeal ( see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022), the defendant's contentions that he is innocent and that his plea was not voluntary because it was coerced are unpreserved for appellate review since he did not move to vacate his plea or otherwise raise these issues before the Supreme Court ( see People v. Lewandowski, 82 A.D.3d 1602, 1602, 919 N.Y.S.2d 623;People v. Mitchell, 69 A.D.3d 883, 883, 892 N.Y.S.2d 777;see also People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668;People v. Lopez, 71 N.Y.2d 662, 665–666, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Bolton, 63 A.D.3d 1087, 880 N.Y.S.2d 558;People v. Antoine, 59 A.D.3d 560, 872 N.Y.S.2d 283). “In any event, a plea of guilty will be upheld as valid if it was entered knowingly, voluntarily, and intelligently” ( People v. Tuffini, 101 A.D.3d 1053, 1053, 955 N.Y.S.2d 523;see People v. Fiumefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671, 626 N.E.2d 646;People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Harris, 61 N.Y.2d 9, 17, 471 N.Y.S.2d 61, 459 N.E.2d 170). Here, the record demonstrates that the defendant's plea of guilty was knowingly, voluntarily, and intelligently entered.

“A criminal defendant's right to a speedy trial is guaranteed both by the Sixth Amendment to the United States Constitution (U.S. Const. 6th, 14th Amends) and by statute (CPL 30.20; Civil Rights Law § 12)” ( People v. Romeo, 12 N.Y.3d 51, 55, 876 N.Y.S.2d 666, 904 N.E.2d 802,cert. denied––– U.S. ––––, 130 S.Ct. 63, 175 L.Ed.2d 24). “Violation of this right results in dismissal of an indictment” ( id. at 55, 876 N.Y.S.2d 666, 904 N.E.2d 802;see Strunk v. United States, 412 U.S. 434, 439–440, 93 S.Ct. 2260, 37 L.Ed.2d 56;People v. Taranovich, 37 N.Y.2d 442, 444, 373 N.Y.S.2d 79, 335 N.E.2d 303). By pleading guilty, the defendant forfeited appellate review of his claim that his statutory right to a speedy trial pursuant to CPL 30.30 was violated ( see People v. O'Brien, 56 N.Y.2d 1009, 1010, 453 N.Y.S.2d 638, 439 N.E.2d 354;People v. Howe, 56 N.Y.2d 622, 624, 450 N.Y.S.2d 477, 435 N.E.2d 1092;People v. Gerber, 182 A.D.2d 252, 260, 589 N.Y.S.2d 171).However, the defendant's constitutional speedy trial claim survives both the entry of his plea of guilty and the valid waiver of his right to appeal ( see People v. Hansen, 95 N.Y.2d 227, 230–231, 715 N.Y.S.2d 369, 738 N.E.2d 773). Upon balancing all the factors to be considered in connection with the defendant's constitutional speedy trial claim ( see People v. Taranovich, 37 N.Y.2d at 445, 373 N.Y.S.2d 79, 335 N.E.2d 303), we find that the defendant's right to a speedy trial was not violated.

By waiving his right to appeal, the defendant gave up the right to challenge the adequacy of defense counsel's representation, except insofar as counsel's alleged ineffectiveness affected the voluntariness of the defendant's plea ( see People v. Williams, 84 A.D.3d 1417, 1418, 924 N.Y.S.2d 539). The defendant's contention that he was deprived of the effective assistance of counsel insofar as counsel's alleged ineffectiveness affected the voluntariness of the defendant's plea is based on matter dehors the record and, therefore, cannot be reviewed on direct appeal ( see People v. Cohen, 100 A.D.3d 919, 953 N.Y.S.2d 900;People v. Cancel, 92 A.D.3d 891, 891, 938 N.Y.S.2d 814;People v. Bivens, 88 A.D.3d 808, 809, 930 N.Y.S.2d 910;People v. Romero, 82 A.D.3d 1013, 1013, 918 N.Y.S.2d 730;People v. Burgess, 81 A.D.3d 969, 970, 917 N.Y.S.2d 881;People v. Anthoulis, 78 A.D.3d 854, 854–855, 910 N.Y.S.2d 370).

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