People v. Sze

• Decision Date: 22 January 2014
• Parties: The PEOPLE, etc., respondent, v. Kwok SZE, appellant.
• Court: New York Supreme Court — Appellate Division

113 A.D.3d 795
978 N.Y.S.2d 879
2014 N.Y. Slip Op. 00380

The PEOPLE, etc., respondent,
v.
Kwok SZE, appellant.

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

Jan. 22, 2014.

Kwok Sze, Malone, N.Y., appellant pro se.

Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff, Steven Bender, and Richard Longworth Hecht of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Cohen, J.), rendered October 13, 2009, convicting him of course of sexual conduct against a child in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's claim that he did not validly waive his right to be prosecuted by an indictment is not precluded by his plea of guilty or his valid waiver of his right to appeal ( see People v. Davenport, 106 A.D.3d 1197, 1197, 964 N.Y.S.2d 759). However, contrary to the defendant's contention, he did validly waive his right to be prosecuted by an indictment ( see CPL 195.10; People v. Zanghi, 79 N.Y.2d 815, 580 N.Y.S.2d 179, 588 N.E.2d 77).

“ ‘A criminal defendant's right to a speedy trial is guaranteed both by the Sixth Amendment to the United States Constitution (U.S. Const. 6th, 14th Amends) and by statute (CPL 30.20; Civil Rights Law § 12)’ ” (People v. Franco, 104 A.D.3d 790, 790, 960 N.Y.S.2d 507, quoting People v. Romeo, 12 N.Y.3d 51, 55, 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). To the extent that the defendant claims a violation of his constitutional right to a speedy trial, his contentions are without merit. To the extent that the defendant claims that his statutory right to a speedy trial pursuant to CPL 30.30 was violated, he has forfeited appellate review of this claim by pleading guilty ( see People v. O'Brien, 56 N.Y.2d 1009, 1010, 453 N.Y.S.2d 638, 439 N.E.2d 354; People v. Howe, 56 N.Y.2d 622, 624, 450 N.Y.S.2d 477, 435 N.E.2d 1092; People v. Franco, 104 A.D.3d at 790, 960 N.Y.S.2d 507).

The defendant's valid waiver of his right to appeal precludes appellate review of his claim of ineffective assistance of counsel, except to the extent that the alleged ineffective assistance affected the voluntariness of his plea ( see People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145; People v. Dunne, 106 A.D.3d 928, 928–929, 964 N.Y.S.2d 663; People v. Smith, 102 A.D.3d 896, 897, 958 N.Y.S.2d 204). Insofar as the defendant...