People v. Gardiner, 108482

• Decision Date: 22 March 2018
• Docket Number: 108482
• Parties: The PEOPLE of the State of New York, Respondent, v. Lucas GARDINER, Appellant.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 1233
73 N.Y.S.3d 643

The PEOPLE of the State of New York, Respondent,
v.
Lucas GARDINER, Appellant.

108482

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

Calendar Date: February 14, 2018
Decided and Entered: March 22, 2018

Adam H. Van Buskirk, Chateaugay, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Joseph A. Frandino of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Mulvey, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

73 N.Y.S.3d 644

Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered October 30, 2015, convicting defendant upon his plea of guilty of the crime of attempted burglary in the first degree.

In November 2014, defendant was arrested and charged by felony complaints with burglary in the first degree and criminal possession of a weapon in the third degree. In June 2015, he was charged by indictment with those same crimes and four additional crimes, and the People thereafter declared their readiness for trial. Defendant ultimately pleaded guilty to one count of attempted burglary in the first degree and waived his right to appeal. Pursuant to the plea agreement, defendant was sentenced, as a second violent felony offender, to seven years in prison, followed by five years of postrelease supervision. Defendant now appeals.

Defendant contends that the approximately 7½–month delay between the time the felony complaints were filed and the People declared their readiness for trial violated his statutory and constitutional rights to a speedy trial. As to his statutory speedy trial claim, this claim was forfeited by defendant's guilty plea and is also foreclosed by his unchallenged appeal waiver (see People v. Toledo, 144 A.D.3d 1332, 1334 n. 2, 40 N.Y.S.3d 680 [2016], lv denied 29 N.Y.3d 1001, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017] ; People v. Wright, 119 A.D.3d 972, 973 n. 1, 989 N.Y.S.2d 180 [2014] ; People v. Devino, 110 A.D.3d 1146, 1147, 973 N.Y.S.2d 372 [2013] ). Moreover, it is unpreserved for our review given defendant's failure to raise it before County Court (see People v. Cooper, 134 A.D.3d 1583, 1585–1586, 22 N.Y.S.3d 751 [2015] ; People v. Devino, 110 A.D.3d at 1147, 973 N.Y.S.2d 372 ). Although defendant's constitutional speedy trial claim survives his guilty plea and appeal waiver (see People v. Lanfranco, 124 A.D.3d 1144, 1145, 1 N.Y.S.3d 576 [2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ; People v. Irvis, 90 A.D.3d 1302,

73 N.Y.S.3d 645

1303, 935 N.Y.S.2d 371 [2011], lv denied 19 N.Y.3d 962, 950 N.Y.S.2d 114, 973 N.E.2d 212 [2012] ; People v. McCorkle, 67 A.D.3d 1249, 1250, 890 N.Y.S.2d 665 [2009] ), it is equally unpreserved for our review (see People v. Fay, 154 A.D.3d 1178, 1180, 63 N.Y.S.3d 575 [2017], lv de nied 30 N.Y.3d 1115, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2018 WL 1282769 [Feb. 15, 2018] ; People v. Grumberg, 153 A.D.3d 1525, 1527, 62 N.Y.S.3d 199 [2017] ; People v. Gerald, 153 A.D.3d 1029, 1030, 61 N.Y.S.3d 173 [2017] ). In any...