People v. Garcia

• Decision Date: 20 December 2007
• Docket Number: 15907.
• Citation: 853 N.Y.S.2d 174,46 A.D.3d 1120,2007 NY Slip Op 09977
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MARCOS GARCIA, Appellant.
• Court: New York Supreme Court — Appellate Division

46 A.D.3d 1120

853 N.Y.S.2d 174

2007 NY Slip Op 09977

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MARCOS GARCIA, Appellant.

15907.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided December 20, 2007.

Appeal, by permission, from an order of the County Court of Rensselaer County (Czajka, J.), entered January 13, 2005, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of criminal sale of a controlled substance in the second degree (two counts) and criminal possession of a controlled substance in the third degree (two counts), without a hearing.

Kane, J.

After defendant was convicted of four drug crimes, he moved to vacate his conviction on the basis of ineffective assistance of counsel. County Court denied that motion. On appeal of his conviction and the denial of his CPL 440.10 motion, this Court affirmed the conviction, but withheld decision regarding the motion (33 AD3d 1050 [2006], lv denied 9 NY3d 844 [2007]). We remitted for a hearing on the narrow issue of whether defendant's constitutional speedy trial rights were violated as of April 30, 2003, when defense counsel waived defendant's rights. If his rights had been violated as of that time, then counsel deprived him of meaningful representation by waiving a meritorious claim and failing to move for dismissal based upon the violation of those rights. Revisiting the issue with the benefit of a hearing transcript, we now affirm.

The factors to consider concerning defendant's constitutional speedy trial rights are the extent of the delay, reason for the delay, nature of the underlying charges, any extended pretrial incarceration and any indications of prejudice or impairment to the defense attributable to the delay (see People v Taranovich, 37 NY2d 442, 445 [1975]). The serious sales of fairly large quantities of drugs occurred in November 2001, April 2002 and July 2002. Defendant has been incarcerated since his arrest in November 2002. Counsel waived defendant's speedy trial rights on April 30, 2003, 17 months after the first drug sale and five months after defendant became incarcerated. The record discloses that defendant's attempts to obtain a favorable preindictment plea bargain, perhaps in exchange for his cooperation with police, contributed to the delay following his arrest. In the year between the first drug sale and defendant's arrest, the police were engaged in an ongoing undercover narcotics investigation. This investigation included continuous pen registers and wiretaps on defendant's phones, and contact between undercover operatives and defendant. While the police were not able to achieve their ultimate goal of discovering defendant's supplier, the...