People v. Schillawski

• Decision Date: 02 January 2015
• Citation: 124 A.D.3d 1372,2015 N.Y. Slip Op. 00127,999 N.Y.S.2d 657
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard A. SCHILLAWSKI, Defendant–Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 1372

999 N.Y.S.2d 657

2015 N.Y. Slip Op. 00127

The PEOPLE of the State of New York, Respondent,

v.Richard A. SCHILLAWSKI, Defendant–Appellant. (Appeal No. 1.)

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

Jan. 2, 2015

Affirmed. Currier Law Firm, P.C., Auburn (Rebecca Currier of Counsel), for Defendant–Appellant.

Jon E. Budelmann, District Attorney, Auburn (Nathan J. Garland of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.MEMORANDUM:

In appeal No. 1, defendant appeals from a judgment, entered upon his admission to violating the terms of his probation, revoking a previously imposed sentence of probation and sentencing him to a term of incarceration on the underlying conviction of grand larceny in the fourth degree (Penal Law § 155.30[1] ). In appeal No. 2, defendant appeals from a judgment convicting him, upon his plea of guilty, of an additional charge of grand larceny in the fourth degree (§ 155.30[7] ).

Defendant did not move to withdraw his admission or plea or to vacate the judgment of conviction in either appeal and thus failed to preserve for our review his contention in either appeal that his admission or plea of guilty was not voluntarily entered ( see People v. Boyden, 112 A.D.3d 1372, 1372–1373, 977 N.Y.S.2d 538, lv. denied 23 N.Y.3d 960, 988 N.Y.S.2d 568, 11 N.E.3d 718; People v. Ruffins, 78 A.D.3d 1627, 1628, 910 N.Y.S.2d 625; People v. Diaz, 62 A.D.3d 1252, 1252, 878 N.Y.S.2d 529, lv. denied 12 N.Y.3d 924, 884 N.Y.S.2d 705, 912 N.E.2d 1086). This case does not fall within the narrow exception to the preservation requirement ( see generally People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5). Insofar as defendant contends in appeal No. 2 that County Court erred in denying his motion to dismiss the indictment on statutory speedy trial grounds, we note that, “[w]hen 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; see People v. Paduano, 84 A.D.3d 1730, 1730, 922 N.Y.S.2d 726; People v. Faro, 83 A.D.3d 1569, 1569, 921 N.Y.S.2d 599, lv. denied 17 N.Y.3d 858, 932 N.Y.S.2d 23, 956 N.E.2d 804). Although defendant's contention that he was deprived of his constitutional right to a speedy trial survives his plea of guilty ( see People v. Romeo, 47 A.D.3d 954, 957, 849 N.Y.S.2d 666, affd. 12 N.Y.3d 51, 876 N.Y.S.2d 666, 904 N.E.2d 802, cert. denied 558 U.S. 817, 130 S.Ct. 63, 175 L.Ed.2d 24), “defendant moved to dismiss the indictment on statutory speedy trial grounds only and thus failed to preserve for our review his present contention that he was denied his constitutional right to a speedy trial” ( People v. Weeks, 272 A.D.2d 983, 983, 708 N.Y.S.2d 687, lv. denied 95 N.Y.2d 872, 715 N.Y.S.2d 227, 738 N.E.2d 375; see People v. Chinn, 104 A.D.3d 1167, 1169, 960 N.Y.S.2d 788, lv. denied 21 N.Y.3d 1014, 971 N.Y.S.2d 496, 994 N.E.2d 392; People v. Bradberry, 68 A.D.3d 1688, 1690, 891 N.Y.S.2d 850, lv. denied 14 N.Y.3d 838, 901 N.Y.S.2d 145, 927 N.E.2d 566). In any event, that contention is without merit. Upon our review of the record in light of the factors relevant to such a challenge ( see People v. Taranovich, 37 N.Y.2d 442, 445, 373 N.Y.S.2d 79, 335 N.E.2d 303), we conclude that those factors would have compelled denial of such a motion, and we note in particular that “there [was] a complete lack of any evidence that the defense was impaired by reason of the delay” ( People v. Benjamin, 296 A.D.2d 666, 667, 745 N.Y.S.2d 130; see People v. Pulvino, 115 A.D.3d 1220,...