People v. Rozell

• Decision Date: 25 June 1990
• Citation: 162 A.D.2d 732,557 N.Y.S.2d 129
• Parties: The PEOPLE, etc., Respondent, v. David ROZELL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 129

557 N.Y.S.2d 129

162 A.D.2d 732

The PEOPLE, etc., Respondent, v. David ROZELL, Appellant.

Supreme Court, Appellate Division Second Department.

June 25, 1990.

Louis Meehan, Jackson Heights, for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Barbara D. Underwood, Carol Teague Schwartzkopf and Victor Barall, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, LAWRENCE and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (G. Aronin, J.), rendered October 30, 1984, convicting him of bail jumping in the first degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial (Feldman, J.), without a hearing, of the defendant's motions to dismiss the indictment. By decision and order dated October 3, 1988, this court remitted the matter to the Supreme Court, Kings County, to hear and report on those branches of the defendant's motions which were to dismiss the indictment on the ground of the denial of his State and Federal constitutional due process rights, and the appeal was held in abeyance in the interim (see, People v. Rozell, 143 A.D.2d 690, 533 N.Y.S.2d 15). The Supreme Court, Kings County (Corriero, J.), has conducted a hearing and submitted its report to this court.

ORDERED that the judgment is affirmed.

The denial by the Supreme Court, without a hearing, of those branches of the defendant's motion which were to dismiss the indictment on speedy trial grounds, pursuant to CPL 30.20 and 30.30, does not warrant reversal. "To the extent that [the defendant's] motion * * * was based on the failure of the People to be ready for trial in conformity with the prescriptions of CPL 30.30, his plea of guilty operated as a waiver of his statutory right to any dismissal" (People v. Friscia, 51 N.Y.2d 845, 847, 433 N.Y.S.2d 754, 413 N.E.2d 1168; People v. Wade, 139 A.D.2d 610, 526 N.Y.S.2d 1012). While the defendant's speedy trial claim, pursuant to CPL 30.20 and the Federal Constitution survived his guilty plea (see People v. Friscia, supra, 51 N.Y.2d at 847, 433 N.Y.S.2d 754, 413 N.E.2d 1168), the motion papers submitted by the defendant pro se and his attorney failed to allege sufficient facts to warrant a hearing on this issue (see, CPL 210.45[6].

In addition, we agree with the determination by the Supreme Court that dismissal of the indictment is not warranted on due process grounds (see, People v. Best, 83 A.D.2d 881, 442 N.Y.S.2d 109, cert. denied, 455 U.S. 926, 102...