People v. Heverly

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Garry, P.J.
• Citation: People v. Heverly, 165 A.D.3d 1320, 82 N.Y.S.3d 750(Mem) (N.Y. App. Div. 2018)
• Decision Date: 04 October 2018
• Docket Number: 108635
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph P. HEVERLY, Appellant.

165 A.D.3d 1320

82 N.Y.S.3d 750 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Joseph P. HEVERLY, Appellant.

108635

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

Calendar Date: September 12, 2018

Decided and Entered: October 4, 2018

Salvatore Adamo, Albany, for appellant.

Weeden A. Wetmore, District Attorney, Elmira (Jordan Yorke of counsel), for respondent.

Before: Garry, P.J., McCarthy, Lynch, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered May 23, 2016, convicting defendant upon his plea of guilty of the crime of grand larceny in the fourth degree.

Defendant pleaded guilty to an indictment charging him with grand larceny in the fourth degree and was sentenced as a second felony offender, in accordance with the terms of the plea agreement, to a prison term of 1½ to 3 years. Defendant appeals.

We affirm. Defendant contends that the plea was not knowing, voluntary and intelligent and that he did not receive the effective assistance of counsel because the indictment should have been dismissed on statutory speedy trial grounds. These claims are unpreserved for our review as the record does not reflect that defendant made an appropriate postallocution motion (see People v. Lamb, 162 A.D.3d 1395, 1396, 80 N.Y.S.3d 520 [2018] ). Were we to consider defendant's contentions, we would find them to be without merit. The record reflects that counsel submitted a motion to dismiss on statutory speedy trial grounds, but defendant ultimately made the decision to withdraw the motion and accept the plea agreement prior to the motion being decided. "When defendant entered a plea of guilty he forfeited his right to claim that he was deprived of a speedy trial under CPL 30.30" ( People v. O'Brien, 56 N.Y.2d 1009, 1010, 453 N.Y.S.2d 638, 439 N.E.2d 354 [1982] ; see People v. Ellison, 160 A.D.3d 1113, 1113, 71 N.Y.S.3d 906 [2018] ; People v. Brandon, 133 A.D.3d 901, 902, 20 N.Y.S.3d 432 [2015], lvs denied 27 N.Y.3d 992, 1000, 38 N.Y.S.3d 103, 110, 59 N.E.3d 1215, 1222 [2016]; People v. Stevenson, 119 A.D.3d 1156, 1157, 990 N.Y.S.2d 317 [2014] ). To the extent that defendant challenges the severity of the sentence imposed, we note that the agreed-upon sentence was the statutory minimum for a second felony offender (see Penal Law § 70.06[3][e] ; [4][b] ) and cannot be considered harsh or excessive (see People v. Duggins, 161 A.D.3d 1445, 1447, 77 N.Y.S.3d 765 [2018], lv denied 32 N.Y.3d 937, 84...