People v. Gerald, 104905.

• Decision Date: 10 August 2017
• Docket Number: 104905.
• Citation: 153 A.D.3d 1029,61 N.Y.S.3d 173
• Parties: The PEOPLE of the State of New York, Respondent, v. Brandon GERALD, Appellant.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 1029
61 N.Y.S.3d 173

The PEOPLE of the State of New York, Respondent,
v.
Brandon GERALD, Appellant.

104905.

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

Aug. 10, 2017.

61 N.Y.S.3d 174

Henry C. Meier, Delmar, for appellant.

Denise Kerrigan, Special Prosecutor, Cornwall, for respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, ROSE and MULVEY, JJ.

McCARTHY, J.P.

Appeals (1) from a judgment of the County Court of Greene County (Pulver Jr., J.), rendered February 7, 2012, convicting defendant upon his plea of guilty of the crime of attempted assault in the second degree, and (2) by permission, from an order of said court (Tailleur, J.), entered January 27, 2016, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.

In February 2010, while an inmate at Greene Correctional Facility, defendant was accused of assaulting a correction officer by, among other things, placing him in a choke hold. Approximately 14 months later, in April 2011, defendant was indicted on two counts of assault in the second degree. Defendant subsequently pleaded guilty to one count of attempted assault in the second degree and was sentenced, as a second felony offender, to 1 ½ to 3 years in prison, to run consecutively to his original sentence. Defendant subsequently moved pursuant to CPL article 440 to vacate the judgment of conviction, contending that, among other things, he was denied the effective assistance of counsel due to counsel's failure to move to dismiss the indictment on speedy trial grounds. County Court (Tailleur, J.) denied the motion to vacate, without a hearing. Defendant now appeals from the judgment of conviction and, by permission, from the order denying his motion to vacate.

Defendant initially contends that his constitutional right to a speedy trial was denied as a result of the 14–month delay between the February 2010 alleged assault and his April 2011 indictment. Although defendant's claim survives both his guilty plea and his waiver of the right to appeal (see People v. Lanfranco, 124 A.D.3d 1144, 1145, 1 N.Y.S.3d 576 [2014],

61 N.Y.S.3d 175

lv. denied 25 N.Y.3d 1203, 16 N.Y.S.3d 526, 37 N.E.3d 1169 [2015] ), it is unpreserved as he failed to raise it before County Court (Pulver Jr., J.) prior to his plea (see People v. Archie, 116 A.D.3d 1165, 1165, 983 N.Y.S.2d 358 [2014] ). In any event, the contention is without merit. Certainly, "[a]n unreasonable and unjustified indictment delay violates a defendant's due process rights and may result in dismissal of the indictment, even when no prejudice results" ( People v. Alexander, 127 A.D.3d 1429, 1430, 8 N.Y.S.3d 674 [2015], lv. denied 25 N.Y.3d 1197, 16 N.Y.S.3d 520, 37 N.E.3d 1163 [2015] ; see People v. Lesiuk, 81 N.Y.2d 485, 490, 600 N.Y.S.2d 931, 617 N.E.2d 1047 [1993] ). Here, the People failed to provide an adequate explanation for the 14–month delay (see People v. Lanfranco, 124 A.D.3d at 1145, 1 N.Y.S.3d 576 ); however, we note that delays of similar lengths have been found not to violate a defendant's right to due process (see People v. Williams, 120 A.D.3d 1526, 1527, 993 N.Y.S.2d 196 [2014], lv. denied 24 N.Y.3d 1090, 1 N.Y.S.3d 16, 25 N.E.3d 353 [2014] [14–month delay]; People v. Ruise, 86 A.D.3d 722, 723, 926 N.Y.S.2d 754 [2011], lv. denied 17 N.Y.3d 861, 932 N.Y.S.2d 27, 956 N.E.2d 808 [2011] [13–month delay]; People v. Hernandez, 42 A.D.3d 657, 662, 839 N.Y.S.2d 592 [2007] [14–month delay] ). Moreover, in determining the reasonableness of such a delay in a particular case, we consider not only the length of and proffered explanation for the delay, but also the nature of the underlying charge, whether there has been an extended period of incarceration and whether there was any impairment to the defense attributable to the...