People v. Lanfranco

• Decision Date: 29 January 2015
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose LANFRANCO, Appellant.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 1144
1 N.Y.S.3d 576

The PEOPLE of the State of New York, Respondent,
v.
Jose LANFRANCO, Appellant.

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

Jan. 29, 2015.

1 N.Y.S.3d 577

David E. Woodin, Catskill, for appellant.

Joseph Stanzione, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, EGAN Jr. and DEVINE, JJ.

EGAN JR., J.

124 A.D.3d 1144

Appeal from a judgment of the County Court of Greene County (Pulver, J.), rendered April 2, 2013, convicting defendant upon his plea of guilty of the crime of attempted promoting prison contraband in the first degree.

In February 2012, a grand jury returned a sealed indictment charging defendant with one count of promoting prison contraband in the first degree. The charges stemmed from a May 2011 incident at Coxsackie Correctional Facility in Greene County (where defendant then was incarcerated), at which time a search of defendant uncovered a piece of glass wrapped in a cardboard and masking tape sheath inside of his underwear. Defendant was arraigned on this charge in March 2012. Various motions followed, including an omnibus motion seeking the production of the underwear that defendant was wearing at the time of the incident, as well as defendant's pro se motion seeking, among other things, to dismiss the indictment upon statutory and constitutional speedy trial grounds. County Court denied both motions and, in February 2014, defendant entered an Alford plea to the reduced charge of attempted promoting prison contraband in the first degree and waived his right to appeal his conviction and sentence. Following an unsuccessful pro se motion to withdraw his plea, defendant was sentenced as a second felony offender to the agreed-upon prison term of 1 ½ to 3 years, said sentence to be served consecutively to the sentence he already was serving. This appeal ensued.

Defendant's primary argument upon appeal is that he was denied his constitutional right to a speedy trial by virtue of prearraignment

124 A.D.3d 1145

delay.¹ Although defendant's speedy trial claim survives both his guilty plea and his waiver of the right to appeal (see People v. Tuper, 118 A.D.3d 1144, 1146, 987 N.Y.S.2d 505 [2014] ), we find it to be lacking in merit. In reviewing an alleged constitutional speedy trial violation, we must consider five factors: "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charges; (4) any extended period of pretrial incarceration; and (5) any impairment of defendant's defense" ( People v. Romeo, 12 N.Y.3d 51, 55, 876 N.Y.S.2d 666, 904 N.E.2d 802 [2009], cert. denied 558 U.S. 817, 130 S.Ct. 63, 558 U.S. 817 [2009] ; see People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303 [1975] ; People v. Irvis, 90 A.D.3d 1302, 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] ).

1 N.Y.S.3d 578

Here, although the People indeed proffered no reason for the 10–month delay, delays of similar lengths have been found not to violate due process (see People v. Weatherspoon, 86 A.D.3d 792, 792–793, 927 N.Y.S.2d 217 [2011], lv. denied 17 N.Y.3d 905, 933 N.Y.S.2d 660, 957 N.E.2d 1164 [2011] [nine-month delay]; People v. Striplin, 48 A.D.3d 878, 879, 851 N.Y.S.2d 685 [2008], lv. denied 10 N.Y.3d 871, 860 N.Y.S.2d 497, 890 N.E.2d 260 [2008] [9 ½–month delay]; People v. Hernandez, 42 A.D.3d 657, 662, 839 N.Y.S.2d 592 [2007] [14–month delay]; People v. Irvis, 301 A.D.2d 782, 783–784, 754 N.Y.S.2d 693 [2003], lv. denied 99 N.Y.2d 655, 760 N.Y.S.2d 119, 790 N.E.2d 293 [2003] [10–month delay] ), the charge at issue implicated "the safety and...