People v. Lowry

• Decision Date: 14 January 1985
• Citation: 107 A.D.2d 716,484 N.Y.S.2d 71
• Parties: The PEOPLE, etc., Respondent, v. Lamont LOWRY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 71

484 N.Y.S.2d 71

107 A.D.2d 716

The PEOPLE, etc., Respondent, v. Lamont LOWRY, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 14, 1985.

George T. Dunn, New York City, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Susan C. Kramer, New York City, of counsel), for respondent.

Before MOLLEN, P.J., and BRACKEN, O'CONNOR and NIEHOFF, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered October 14, 1982, convicting him of manslaughter in the first degree, upon his plea of guilty, and sentencing him to an indeterminate term of imprisonment of eight and one-third years to twenty-five years.

Judgment affirmed.

On this appeal, the defendant, in essence, contends that Criminal Term erroneously denied his application to dismiss the indictment on the ground that his right to a speedy trial, as guaranteed by the Federal Constitution (U.S. Const., 6th and 14th Amdts.; see Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1) and the New York Criminal Procedure Law (CPL 30.20), was violated.

In People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303, the Court of Appeals stated that,

"following factors should be examined in balancing the merits of an assertion that there has been a denial of defendant's right to a speedy trial: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay".

The Taranovich court, however, cautioned that "no one factor or combination of factors * * * is necessarily decisive or determinative of the speedy trial claim, but rather the particular case must be considered in light of all the factors as they apply to it" (37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303, supra ).

Balancing the factors listed above, we conclude, as did Criminal Term, that the defendant's rights to a speedy trial were not violated. Though the delay in this case, some 22 months, was lengthy, during which time the defendant apparently was incarcerated, we note the seriousness of the underlying charge (murder in the second degree) as well as the defendant's failure to establish that his defense was impaired to any extent by the delay (see People v. Bernard L. Johnston, 105 A.D.2d 1010, 483 N.Y.S.2d 458 People v. Mastrangelo, 100 A.D.2d 914, 474 N.Y.S.2d 572; People v. Watts, 86 A.D.2d 964, 448 N.Y.S.2d 299, affd. 57 N.Y.2d 299, 456 N.Y.S.2d 677, 442 N.E.2d 1188; cf. People v. Johnson, 38 N.Y.2d 271, 379 N.Y.S.2d 735, 342 N.E.2d 525). Moreover, as found by Criminal Term, the delay was not purposeful or the result of inadvertence (see People v. Taranovich, supra ), but, rather, was occasioned to a large extent by the prosecutor's good faith efforts to obtain medical evidence relevant to the defendant's guilt and the refusal of a People's witness to appear in court. Delay was also attributable to "defense counsel's prior motions for dismissal of the indictment".

The defendant's second contention is that his plea of guilty to the reduced charge of manslaughter in the first degree should be vacated because the court failed to elicit a sufficient factual basis for the plea, and, further, because the court failed to sufficiently question him about his possible justification defense. However, by failing to move to withdraw the plea on either of these grounds prior to the imposition of sentence or to vacate the judgment pursuant to CPL 440.10, the defendant has not preserved these issues for appellate review (see People v. Hoke, 62 N.Y.2d 1022, 479 N.Y.S.2d 495, 468 N.E.2d 677; People v. Pellegrino, 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938; People v. Mattocks, 100 A.D.2d 944, 474 N.Y.S.2d 849). Were we to review these issues in the interest of justice, we would nevertheless find them to be without merit (see People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170; People v. Francis, 38 N.Y.2d 150, 379 N.Y.S.2d 21, 341 N.E.2d 540; People v. Clairborne, 29 N.Y.2d 950, 329 N.Y.S.2d 580, 280 N.E.2d 366).

The defendant's third contention...